Florida judge throws Trump, DOJ curveball with special master decision

The decision by a federal judge in Florida to grant former President Trump’s request for a special master is poised to shake up the investigation into his handling of highly classified documents while dragging out the polarizing fight.

Legal experts say the decision is a major curveball in the Justice Department’s probe, which could delay it for at least a few weeks, and forces the agency to weigh whether and how to battle the decision.

The developments represent a win for Trump, who had pushed for the appointment of a third-party special master to review documents seized by the FBI after they searched his Mar-a-Lago property Aug. 8.

It’s a move that has upset a series of steady victories by a Justice Department that time and again has shown the magnitude of classified information stored at Mar-a-Lago, while shifting the cries of a politicized process from Trump’s backers to those perplexed by the ruling.

“It throws a significant wrench in the government’s investigation. In fact, it shuts it down for the moment until further notice. And we’re in a ‘Mother may I?’ pose, where the government can’t do anything with the evidence that it’s seized until it’s blessed to do so, expressly authorized to do so, by this judge, which means that the investigation is essentially held hostage at the moment,” Jeff Robbins, a former federal prosecutor and congressional investigative counsel, told The Hill.

“You have to assume that at Mar-a-Lago they are singing ‘It’s beginning to look a lot like Christmas.’ ”

The decision is viewed as unusual and has triggered some criticism of District Judge Aileen Cannon, the Trump appointee who issued the order on Monday and who some argue appeared too solicitous of the former president. 

“It is unusual, but of course the whole underlying circumstances are unusual,” said Jack Sharman, a white-collar criminal defense attorney, of the order. “That sort of puts an asterisk, so to speak, on some of the impact of the decision.”

Cannon’s ruling was largely focused on the optics — arguing that “a commitment to the appearance of fairness is critical, now more than ever” — even if Trump gains little from the exercise.

“Plaintiff ultimately may not be entitled to return of much of the seized property or to prevail on his anticipated claims of privilege. That inquiry remains for another day,” she wrote.

“For now, the circumstances surrounding the seizure in this case and the associated need for adequate procedural safeguards are sufficiently compelling to at least get plaintiff past the courthouse doors.”

Cannon gave Trump and the Justice Department until Friday to team up, directing them to “meaningfully confer” and jointly submit a list of proposed candidates.

But beyond this week, it’s not clear how the timeline will play out.

An appeal from the Justice Department would likely add to the delay the investigation will now face, but without a court-imposed deadline, a special master’s work could also take weeks.

Still, the blow from the ruling is one experts say the agency cannot simply stand by and accept.

Barbara McQuade, a former U.S. attorney who worked on the Justice Department’s transition under the Biden administration, said that Cannon’s order raises a number of questions, not least among them being the lack of clarity around her directive that investigators not use any of the search material they obtained until after the special master has finished his or her work.

“To what extent is that direct utilization, or do you have to replace the whole investigative team?” McQuade asked. “To the extent people have reviewed it, you can’t unsee what you have seen.”

McQuade said the Justice Department could ask for more clarity in the next filing and potentially try to narrow the scope of her order.

Any missteps on the investigative front carry serious risks for prosecutors working the case.

“One doesn’t know how long the Department of Justice will be crippled, but for the moment it is crippled. If they do anything, directly or indirectly, with the evidence that they seized on Aug. 8, they run the very serious risk that a judge, perhaps this judge, will find that all of the evidence is inadmissible and has been tainted, as lawyers like to say, as fruit of a poisonous tree,” Robbins, the former federal prosecutor, said — undercutting any eventual case they may wish to bring against Trump.

But not all see the special master as a major disruption.

“The government’s position is, it will have a considerable dampening effect on it in terms of time but that may be overstated,” Sharman said.

“The order seems to contemplate a matter of weeks, not months, to get all this done.”

The order is also unwinding early victories for the Justice Department as filing after filing — many unsealed by judicial order — offered up details as to the strength of the case it was building from the Mar-a-Lago search, often making it more difficult for some of Trump’s usual defenders to offer their backing.

“What it will do is feed the argument. The Trump team will say this just shows that a federal judge has found that the execution of the search warrant was politically motivated or was suspicious or was conducted in an unfair way. She hasn’t made, really, any of those findings. … There has been no evidence presented to the judge of any kind, that the Department of Justice did anything wrong, at any level,” Robbins said.

“But the ruling will absolutely be invoked by every Trump ally on conservative media as a vindication of these general lies, conclusory baseless attacks on the Department of Justice,” he added.

“That’s unfortunate, because that actually does create a lack of faith in the system. And it’s an unwarranted lack of faith in the system.”

Trump seemed to react to the development by posting to his platform Truth Social that it “takes courage and ‘guts’ to fight a totally corrupt Department of ‘Justice’ and the FBI,” without explicitly mentioning the ruling on the special master.

McQuade said the ruling itself “suggested a little bit of a favor” toward Trump by describing the FBI search of his property as “unannounced” and by describing Trump as in a “league of his own.”

The Justice Department requested a warrant only after it learned that even after a May subpoena, Trump’s legal team likely did not return all classified information the former president had in his possession after leaving office. In the course of the department’s search, agents found another 100 classified documents — noting in a briefing that in hours they were able to find twice the number of classified materials as Trump’s team did over weeks.

McQuade also said it was “highly inappropriate” for Cannon to issue a preliminary order saying that she was inclined to grant Trump’s request, before hearing the arguments.

In deciding whether to appeal the ruling, McQuade said Justice Department attorneys will need to weigh the potential for such a move to delay the investigation in such a way that they are not able to complete it before the end of President Biden’s first term.

Trump is expected to mount another run for president, meaning it’s possible he could enter office without the investigation having been completed.

“He could shut down the investigation or even pardon himself,” McQuade said.

Brett Samuels contributed.