Judge appoints special master, denying DOJ access to classified records

A federal judge on Thursday denied the Justice Department’s motion to access the classified records stored at Mar-a-Lago and installed a recently retired judge to serve as the special master former President Trump requested.

The duo of orders from federal district Judge Aileen Cannon will ignite a Department of Justice (DOJ) appeal to the 11th Circuit and also selects Judge Raymond Dearie to serve as the special master — the one candidate both the DOJ and Trump’s legal team could agree on.

The order requires Dearie to complete his review by Nov. 30 — a slightly shorter deadline than the 90-day window Trump requested, but one that punts the determination past the midterms. In a rare instance of siding with the DOJ, Cannon required Trump to pay for the full cost associated with a special master.

Cannon’s decision came after the DOJ asked for a partial stay of the judge’s motion, arguing they should be able to review the more than 100 classified documents taken during the search as Trump could have no possible claim to the records as either personal property or under executive privilege.

“If the court were willing to accept the government’s representations that select portions of the seized materials are—without exception—government property not subject to any privileges, and did not think a special master would serve a meaningful purpose, the court would have denied plaintiff’s special master request,” Cannon wrote.

“The court does not find it appropriate to accept the government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.”

The order is the latest blow to the DOJ, where the investigation based on those documents is largely blocked until the completion of the review. While the intelligence community-led damage assessment of the fallout from the mishandling of the documents has been allowed to continue, the DOJ made clear it will be difficult to complete while the FBI is siloed from its other intelligence partners.

Dearie only announced his full retirement in late August from the U.S. District Court for Eastern New York after working as a senior judge since 2011. While he was initially proposed by Trump, in a later filing the DOJ agreed to his possible selection, listing him as among the proposed candidates with “substantial judicial experience … including federal cases involving national security and privilege concerns.”

A Reagan appointee, Dearie has worked as a judge since 1986, including a seven-year stint on the U.S. Foreign Intelligence Surveillance Court, or FISA court.

During that time Dearie was among the judges to approve the 2016 warrant to surveil Trump campaign foreign policy adviser Carter Page as the Justice Department investigated Russian interference in the presidential election.

The order from Cannon requires Dearie to review the more than 10,000 records that were taken from Mar-a-Lago, asking him to prioritize review of the classified documents before moving to the bulk of the materials that the DOJ has identified as government records.

But the structure of the order allows Trump’s attorneys to also review the more than 100 classified records taken during the search, a process that would take place in “controlled access conditions (including necessary clearance requirements).”

Doing so will allow Trump’s legal team to review documents that even those with some of the most high level security clearances are barred from accessing. Among the materials taken from Mar-a-Lago are Special Access Programs materials that can only be accessed by those with a need to know.

Meanwhile the DOJ is blocked from using them in its own investigation, though Cannon clarified her first order “does not restrict the government from conducting investigations or bringing charges based on anything other than the actual content of the seized materials.”

Cannon’s decision came after Trump’s attorneys insinuated — but stopped short of claiming — that Trump may have declassified some of the records found at his property.

The Espionage Act, cited in the warrant to search Trump’s property, does not require mishandling of classified records, just “national defense information.”

The DOJ has broadly rejected Trump’s claim to any of the documents under executive privilege, noting that if they were created as part of his presidency, they are indeed government records.

But they have been most vocal about that argument as it applies to the tranche of classified records.

“Any record bearing classification markings was necessarily created by the government and, therefore, is not plaintiff’s personal property,” the DOJ wrote in a Tuesday filing.

“Plaintiff offers no response to the government’s multiple arguments demonstrating that he cannot plausibly assert executive privilege to prevent the executive branch itself from reviewing records that executive branch officials previously marked as classified.”

Mark Zaid, a national security lawyer, said he was surprised to see Cannon be so dismissive of the DOJ’s concerns about recovering the classified materials.

“I have been litigating against USG for 30 years regarding classified records,” he wrote on Twitter.

“I have never seen a federal judge disregard Executive Branch classification concerns to such an extent as Judge Cannon did tonight.”

Updated at 8:24 p.m.