Fight over executive privilege
Trump’s team is requesting an expansive independent review, to filter out documents that are attorney-client privileged or that fall under executive privilege.
Prosecutors also say the special master should “submit to NARA,” the National Archives and Records Administration, any documents that Trump claims are covered under executive privilege, and consult with the agency “on the determination of Presidential records.” (NARA previously rejected Trump’s executive privilege claims for materials, including classified documents, that he eventually turned over voluntarily in January.)
Trump’s lawyers, meanwhile, want the special master to review “all seized materials,” including classified records.
They also want the special master to “evaluate potential executive privilege claims” in the documents. And they said there is no reason why the special master “should, or needs to” consult with NARA about anything.
Special master nominees from the Justice Department
Thomas Griffith, served on the prestigious DC Circuit Court of Appeals from 2005 to 2020. In one of his final major rulings before retiring, he wrote the majority opinion rejecting House Democrats’ attempt to subpoena Trump’s former White House Counsel Don McGahn. (The decision was later overturned.)
Since his retirement, Griffith co-authored a report alongside other prominent conservative lawyers and officials debunking Trump’s lies about massive fraud in the 2020 election. He also publicly endorsed President Joe Biden’s nomination of Ketanji Brown Jackson to serve on the Supreme Court.
Barbara Jones, a former federal prosecutor and a retired judge who has been a special master in several recent high-profile investigations.
She was special master to examine materials seized during an FBI raid of Rudy Giuliani’s home and office in April 2021. She was also a special master in the Michael Cohen case, to make sure investigators didn’t sweep up any documents that were attorney-client privileged.
From the Trump team
Paul Huck Jr., who now has his own law firm, had been a partner at the Jones Day law firm, which represented the Trump campaign in 2016.
Huck also previously served as the deputy attorney general for Florida and as general counsel to former Florida Gov. Charlie Crist — then a Republican and now the Democratic nominee for governor in Florida.
There is one potential complication however: Chris Kise, Trump’s current lawyer, also worked for Crist and overlapped with Huck.
Raymond Dearie served as a federal judge in New York since 1986. He retired in 2011 and is now a senior judge on the circuit.
Dearie also served a seven-year term on the US Foreign Intelligence Surveillance Court, or FISA court. He was one of the judges who approved an FBI and DOJ request to surveil Carter Page, a Trump campaign foreign policy adviser, as part of the federal inquiry into whether Russia interfered in the 2016 election.
How long will this review go on?
There are a lot of documents from Mar-a-Lago to review, and Trump’s team isn’t in a hurry. They proposed the special master get 90 days to complete his or her work.
The Justice Department wants to move more quickly, proposing the review be finished by October 17.
Historically, Trump has not hesitated to exhaust his legal options, and we could end up seeing appeals up to the Supreme Court. Already, the Justice Department has appealed Cannon’s original ruling requiring the special master.
Who gets the bill?
Someone has to pay for the special master’s time and resources, and nobody’s offering to pick up the full check.
The Justice Department lawyers told Cannon that they think Trump should pay for the whole thing because he’s the one who is “requesting the special master.”
Trump’s lawyers propose that the costs incurred by the Mar-a-Lago special master should be “split evenly” between him and the US government.
Trump team obliquely raises possibility that docs were declassified
Trump’s team said that the Justice Department “wrongly assumes” that documents are classified forever if they have classification markings.
“Their stance wrongly assumes that if a document has a classification marking, it remains classified in perpetuity,” the filing says, explaining Trump’s position on the matter.
Their comment raises the specter that some of the materials seized from Mar-a-Lago might have been declassified, even though the documents have classification markings on them.
What’s next?
Cannon has some tough decisions to make, with the whole country watching.
In her original ruling on Labor Day, she indicated she would act quickly, but there’s no official deadline at the moment.
CNN’s Hannah Rabinowitz, Laura Smitherman, Kara Scannell, Evan Perez and Shawna Mizelle contributed to this report.
