US Judge grants Trump’s request for special master to review documents seized by FBI

The Court (Aileen Cannon, US Judge) hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney- client and/or executive privilege. Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures, the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order.

RELEVANT BACKGROUND

The following is a summary of the record based on the parties’ submissions and oral presentation.1 Throughout 2021, former President Donald J. Trump (“Plaintiff”) and the National Archives and Records Administration (“NARA”) were engaged in conversations concerning records from Plaintiff’s time in office.

In January 2021, as a product of those conversations, Plaintiff transferred fifteen boxes (the “Fifteen Boxes”) from his personal residence to NARA.

Upon initial review of the Fifteen Boxes, NARA identified the items contained therein as newspapers, magazines, printed news articles, photos, miscellaneous printouts, notes, presidential correspondence, personal records, post-presidential records, and classified records.

NARA subsequently informed the Department of Justice (“DOJ”) of the contents of the boxes, claiming that some items contained markings of “classified national security information”. On April 12, 2022, NARA notified Plaintiff that it intended to provide the Fifteen Boxes to the Federal Bureau of Investigation (“FBI”) the following week. Plaintiff then requested an extension on the contemplated delivery so that he could determine the existence of any privileged material. The White House Counsel’s Office granted the request. On May 10, 2022, NARA informed Plaintiff that it would proceed with “providing the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022”.

The Government’s filing states that the FBI did not obtain access to the Fifteen Boxes until approximately May 18, 2022.

On May 11, 2022, during the period of ongoing communications between Plaintiff and NARA, and before DOJ received the Fifteen Boxes, DOJ “obtained a grand jury subpoena, for which Plaintiff’s counsel accepted service”. The subpoena was directed to the “Custodian of Records for the Office of Donald J. Trump” and requested “any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings”. Plaintiff contacted DOJ on June 2, 2022, and requested that FBI agents visit his residence the following day to pick up responsive documents. Upon the FBI’s arrival, Plaintiff’s team handed over documents and permitted the three FBI agents and an accompanying DOJ attorney to visit the storage room where the documents were held.

The Government contends that, after further investigation, “the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete,” and that potentially classified documents remained at Plaintiff’s residence.

Based on this evidence and an affidavit that remains partially under seal, on August 5, 2022, the Government applied to a United States Magistrate Judge for a search and seizure warrant of Plaintiff’s residence, citing Title 18, Sections 793, 1519, and 2701 of the United States Code. After taking search warrant from Magistrate On August 8, 2022, pursuant to the search warrant, the Government executed an unannounced search of Plaintiff’s residence. As reflected in the “Detailed Property Inventory” submitted by the Government in this action, agents seized approximately 11,000 documents and 1,800 other items from the office and storage room. The seized property is generally categorized on the inventory as twenty-seven boxes containing documents, with and without classification markings, along with photographs, other documents, and miscellaneous material. Shortly after the search of the residence, Plaintiff’s counsel spoke with the Government and requested the following: a copy of the affidavit in support of the warrant; the Government’s consent to the appointment of a special master “to protect the integrity of privileged documents”; a detailed list of what was taken from the residence and from where exactly; and an opportunity to inspect the seized property. The Government denied those requests.

CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1. A special master shall be APPOINTED to review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property. The exact details and mechanics of this review process will be decided expeditiously following receipt of the parties’ proposals as described below.

2.   The Government is TEMPORARILY ENJOINED from further review and use of any of the materials seized from Plaintiff’s residence on August 8, 2022, for criminal investigative purposes pending resolution of the special master’s review process as determined by this Court. The Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.

3. On or before September 9, 2022, the parties shall meaningfully confer and submit a joint filing that includes:
   1. a list of proposed special master candidates; and
   2. a detailed proposed order of appointment in accordance with Rule 53(b),outlining, inter alia, the special master’s duties and limitations consistent with this Order, ex parte communication abilities, schedule for review, and compensation.
4. Any points of substantive disagreement as to 3(a) or (b) should be identified in the forthcoming joint filing.
5. The Court RESERVES RULING on Plaintiff’s request for return of property pending further review.
6. This Order is subject to modification as appropriate.

DONE AND ORDERED in Chambers at Fort Pierce, Florida this 5th day of September 2022.

AILEEN M. CANNON
UNITED STATES DISTRICT JUDGE