DOJ Says FBI Agents Took Potentially ‘Privileged’ Materials in Trump Raid

Former President Donald Trump speaks at a rally Casper, Wyo., on May 28, 2022. Chet Strange/Getty Images

Officials have completed their examination of documents that were taken during a raid on former President Donald Trump’s Mar-a-Lago residence and it’s possible that “attorney-client privileged information” was seized by FBI agents, the Department of Justice stated in an Aug. 29 filing.

The Justice Department (DOJ) was responding to a motion filed by Trump to request the appointment of a special master to review the seized documents.

The DOJ’s “privilege review team” was tasked with reviewing the documents, prosecutors said in the Aug. 29 legal brief (pdf), coming in response to a weekend ruling by U.S. District Judge Aileen M. Cannon to schedule a hearing on whether an independent third party to oversee the department’s combing of evidence is needed.

That team “identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures,” according to the DOJ’s filing, which noted that the review was carried out before Trump’s request. Prosecutors will provide more information this week, they said.

The procedures include asking the court to make a determination on possibly privileged material and asking Trump’s lawyers whether they will assert privilege, according to the filing.

“Additionally, the Department of Justice and the Office of the Director of National Intelligence (ODNI) are currently facilitating a classification review of materials recovered pursuant to the search,” prosecutors said. “As the Director of National Intelligence advised Congress, ODNI is also leading an intelligence community assessment of the potential risk to national security that would result from the disclosure of these materials.”

About a week prior in a court motion, Trump’s legal team called the FBI search of his property politically motivated and aggressive.

Trump and members of his team have said that while in office, the former president declassified a range of materials.

Cannon, in response, wrote on Aug. 27 that she'll likely approve a special master to look at the documents and other materials. A special master—usually a retired judge or prosecutor—is a neutral third party that’s used to settle some legal disputes such as those involving attorney-client privilege.

“Pursuant to Rule 53(b) (1) of the Federal Rules of Civil Procedure and the Court’s inherent authority, and without prejudice to the parties’ objections, the Court hereby provides notice of its preliminary intent to appoint a special master in this case,” Cannon wrote (pdf).

However, the Trump-appointed judge stipulated that the Aug. 27 order “should not be construed as a final determination on Plaintiff’s Motion.”

Cannon isn’t the same judge who approved the FBI search warrant of Trump’s Mar-a-Lago residence earlier this month and who last week approved the release of a heavily redacted Justice Department affidavit used to obtain the warrant. Days before he ordered the release of the affidavit, U.S. Judge Bruce Reinhart also unsealed a warrant and property receipt in the search.

Seized Documents

Federal authorities took about two dozen boxes of materials from Mar-a-Lago on Aug. 8 that were allegedly classified or top secret, according to the property receipt. Avril Haines, head of the ODNI, told congressional lawmakers on Aug. 26 that U.S. intelligence officials will review the materials.

The significantly redacted affidavit unsealed on Aug. 26 revealed that agents were attempting to obtain “physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of three potential crimes.” Since the raid, neither the DOJ nor the FBI have publicly disclosed what the agents were searching for or why.

Former President Donald Trump's Mar-a-Lago resort where he resides after leaving the White House in Palm Beach, Fla., on Feb. 13, 2021. Joe Raedle/Getty Images

Trump’s complaint last week noted that agents and Justice Department authorities, including top intelligence official Jay Bratt, visited Mar-a-Lago about two months before the raid. The affidavit also noted that DOJ officials told Trump’s team to place additional security on a storage room that apparently held the documents.

Federal officials were greeted by Trump’s lawyers on June 8 when they arrived to retrieve some documents, Trump’s filing states (pdf). The agents were shown a basement storage room with boxes of documents and memorabilia from when Trump was president.

The filing also claimed that after one FBI agent saw the storage room, they told Trump’s team: “Thank you. You did not need to show us the storage room, but we appreciate it. Now it all makes sense.”

In the Mar-a-Lago storage room, there were “boxes, many containing the clothing and personal items of President Trump and the First Lady,” according to the complaint. Department of Justice official Jay Bratt asked the Trump team to secure that storage room and the former president “directed his staff to place a second lock on the door,” it reads.