Trump Team, DOJ Submit Special Master Candidates, Disagree on Scope of Duties in Mar-a-Lago Raid Case

Local law enforcement officers in front of the home of former President Donald Trump at Mar-A-Lago in Palm Beach, Fla., on Aug. 9, 2022. Giorgio Viera/AFP via Getty Images

Former President Donald Trump’s legal team and the U.S. Justice Department on Friday each proposed two candidates to serve as a neutral third party—a special master—to review documents the FBI seized when it raided Trump’s Florida residence Mar-a-lago last month.

Besides proposing different people for the role, the two sides disagreed over the scope of duties the special master should have. In particular, they disagree on whether classified records should be excluded from the review.

The Trump legal team’s proposed candidates are Raymond Dearie and Paul Huck Jr. Dearie, now retired, was the former Chief Judge of the United States District Court for the Eastern District of New York, and was also the former U.S. Attorney for the Eastern District of New York. He also previously served on the Foreign Intelligence Surveillance Court. Huck is a prominent Florida lawyer who was a former General Counsel to the Governor and a former Deputy Attorney General for Florida.

The Justice Department’s two proposed candidates are retired judges Barbara Jones and Thomas Griffith. Jones previously served on the United States District Court for the Southern District of New York and was previously a special master in two previous high-profile investigations involving two of Trump’s former lawyers. Griffith was a former Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit.

Disputing Special Master Boundaries

The Justice Department told U.S. District Judge Aileen Cannon in a joint filing late Friday (pdf) that Trump’s team wants the special master to be allowed to review “all seized materials, including documents with classification markings” that the FBI seized at Mar-a-Lago. Trump’s team also wants the special master to filter out any documents that may be protected by “potential Executive Privilege claims.”

The Justice Department indicated that it does not believe the special master should be allowed to review any classified records or consider potential claims of executive privilege.

“The Government’s position is that the Special Master should not review documents with classification markings; should not adjudicate claims of Executive Privilege (but should submit to [National Archives and Records Administration (NARA)] any documents over which such claims are made); and should consult with NARA on the determination of Presidential records,” the filing reads.

According to the filing, Trump’s team “does not believe that the Special Master should, or needs to, consult with [NARA].” It adds, “To the extent that the Special Master determines such a need, the Plaintiff would suggest that the parties be heard by the Special Master, and possibly this Court, before that step is undertaken.”

Documents seized during the Aug. 8 raid by the FBI of former President Donald Trump's Mar-a-Lago estate in Palm Beach, Fla, in a photo released on Aug. 30, 2022. FBI via The Epoch Times

Trump’s Request Granted

The latest filing comes after U.S. District Judge Aileen Cannon on Sept. 5 granted Trump’s motion to insert a special master into the review process for the records that the FBI seized without warning from Mar-a-Lago on Aug. 8.

She directed the Justice Department to temporarily halt its review of records for investigative purposes, and gave the two sides until Sept. 9 to submit a potential candidate for the special master role, as well as proposals for the duties and schedule of their work.

Cannon, who was nominated by Trump in 2020, said on Sept. 5 she sided with Trump over the objections of the Justice Department in part because the U.S. government’s filter team, which was supposed to identify all potentially privileged items, failed to do so. Cannon had cited at least two instances in which members of the Justice Department’s investigative team were “exposed” to potentially privileged material from the filter team, something she said raised questions about the adequacy of the process.

Cannon said the special master would be responsible for reviewing the records the FBI took from Mar-a-Lago on Aug. 8 and filtering out any documents potentially covered by claims of attorney-client or executive privilege.

The Justice Department is investigating whether Trump has retained government records, some of which were marked as highly classified, at Mar-a-Lago after he left office in January 2021. The department is also probing whether he tried to obstruct its investigation. Christina Bobb, a Trump lawyer, previously told The Epoch Times that the FBI agents were “looking for presidential records, what they deemed to be presidential records and anything that could potentially be classified.”

Donald Trump arrives at Trump Tower in N.Y. on Aug. 9, 2022, the day after FBI agents raided his Mar-a-Lago Palm Beach home, in Fla. David 'Dee' Delgado/Reuters

Trump has said the FBI raid was a continuation of attacks against him, and accused Biden of having had prior knowledge of the raid, but Biden and the White House both denied knowing about the raid in advance.

According to an inventory released on Sept. 2, the FBI agents at Mar-a-Lago had seized 11,179 materials that were not marked classified, and also took 103 documents marked classified, including some marked top secret.

Justice Department Objects

The Justice Department had objected to Trump’s request for a special master. It said that its own review had already identified a limited subset of records that possibly involve attorney-client privilege. The department has argued that the executive privilege doesn’t apply in the investigation, saying that Trump is no longer president and has no right to claim the documents as his.

On Thursday, the Justice Department filed a notice of appeal indicating that it would contest Cannon’s order to the 11th U.S. Circuit Court of Appeals in Atlanta. Government officials asked the judge to lift the hold she ordered on their investigative work pending their appeal, as well as the requirement that the Justice Department must share with the special master the classified records the FBI took on Aug. 8.

After the Justice Department warned late on Thursday that appointing a special master could slow the government’s effort to determine whether classified documents were still missing, Cannon said in a court filing she was willing to consider limiting the special master’s role so that the person wouldn’t be able to review classified documents.

Zachary Stieber, The Associated Press, and Reuters contributed to this report.