US Justice Dept, Trump Team Deeply Divided Over Special Chief Appointment

Former US President Donald Trump speaks at a rally in Wilkes-Barre, Pennsylvania, US Sept. 3, 2022. REUTERS/Andrew Kelly/File Photo

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WASHINGTON, Sept. 9 (Reuters) – The US Department of Justice and Donald Trump’s lawyers said Friday they are deeply divided over whether classified documents seized by the FBI from the former president’s Florida estate, must be reviewed by a special master, and they have each put forward a separate list of candidates for the position.

In a joint filing Friday night, the U.S. Department of Justice told U.S. District Judge Aileen Cannon that Trump’s legal team insists that the special captain be allowed to review “all materials seized, including documents with classification markings.”

Trump’s attorneys also want the special master, an independent third party, to review the files for possible claims of executive privilege — a mandate the department opposes.

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Both sides also each proposed two different sets of possible candidates for the job, though they said they plan to inform the court of their views on each other’s list of candidates by Monday.

A special master is an independent third party sometimes appointed by a federal court to search and segregate sensitive data that could be privileged so that it is not viewed by prosecutors and does not prejudice a criminal investigation.

The Justice Department said it is proposing two special master candidates: retired Judge Barbara Jones, who previously served as special master in cases involving former Trump attorneys Rudy Giuliani and Michael Cohen, or retired Judge Thomas Griffith, an appointee of Republican President George W Bush who served on the DC Court of Appeals from 2005-2020.

Trump’s team introduced Raymond Dearie, a high-status judge on the US District Court for the Eastern District of New York and former US Attorney who has served on the Foreign Intelligence Surveillance Court, and Paul Huck, former Deputy Attorney General of Florida and a former partner of Jones Day, a law firm that previously represented Trump’s campaign.

Both sides also said they disagree on whether the special captain should consult with the US National Archives and Records Administration, which is tasked with preserving executive branch documents.

In addition, neither side could agree on who should pay the special master, with Trump’s team proposing to split the cost and the Justice Department saying Trump should pay because he asked.

JUDGE ORDERED ARBITRATION

Trump is under investigation for holding government records, some of which had been marked as highly classified, at his home in Palm Beach, Florida, after he left office in January 2021. The government is also investigating possible obstruction of the investigation.

The investigation into the documents is one of many federal and state investigations Trump has faced since his tenure and in private matters. He has suggested that he could return to the White House in 2024, but has not made any commitments.

The joint filing came after Cannon, a Trump appointee in Fort Pierce, Florida, ordered the appointment of a special chief arbitrator on Monday and granted Trump’s request.

After the Justice Department warned Thursday that this could delay the government’s efforts to determine if classified documents were still missing, Cannon said in a court filing that she was willing to consider limiting the role of the special master so that he could person would not review the classified documents.

Cannon on Monday banned federal prosecutors from continuing to use the seized documents in their pending criminal investigation until a special master could review them, though she made a limited exception that allowed U.S. intelligence officials to continue their intelligence risk assessment.

The Justice Department on Thursday asked her to reconsider, saying it opposes giving special master’s access to classified documents and must continue to review them for both the criminal investigation and the national security assessment.

They also said the criminal investigation and intelligence assessment are inextricably linked, and the government has been forced to suspend its intelligence investigation amid the legal uncertainty caused by its order.

Prosecutors gave Cannon until Sept. 15 to rule. If she rules against them, they threatened to appeal to the U.S. Court of Appeals for the 11th Circuit.

Trump, for his part, has said on social media that he has released all the records — a claim his lawyers have avoided repeating in legal files in court.

The government “erroneously assumes that if a document has a classification mark, it will remain classified forever,” they said Friday.

Now that Trump’s team has expressed opposition to the department’s request, it remains to be seen whether Cannon agrees to exclude the classified material from the special master’s mandate.

Of the more than 11,000 records seized, only about 100 are documents with classification marks.

Trump’s team has until Monday to formally state its position at the request of the Justice Department.

Cannon has also been criticized for previously ruling that the special captain will be in charge of reviewing records that are not only under attorney-client privilege, but also under the privilege of the executive.

The Justice Department has questioned the logic of its decision, noting that the government documents are not Trump’s personal property and that he is no longer president.

The U.S. Supreme Court sidestepped the question of how far a former president’s privilege claims could go last year by requesting Trump to withhold White House records from a congressional panel investigating the January 6, 2021 U.S. Capitol riot. by his supporters.

However, the U.S. National Archives, after consulting with the Department of Justice, told Trump’s attorneys earlier this year that he cannot assert any privilege against the executive branch to shield the data from the FBI.

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Reporting by Sarah N. Lynch; additional reporting by Eric Beech and Caitlin Webber; Editing by Scott Malone and Alistair Bell

Our Standards: The Thomson Reuters Trust Principles.

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