October 4, 2022

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United States: Accept Trump’s request to appoint a “special judge” after the FBI raid

Florida Federal Judge Eileen Cannon accepted Donald Trump’s request to appoint a “special tutor,” that is, a third, independent person from the Department of Justice to analyze materials seized by the FBI at Mar-a-Lago. The judge also prohibited the use of the material for “investigative purposes” until it was analyzed by a “private teacher.” This was reported by the Twitter account of Chris Gaydner, a judicial journalist working for MSNBC. Judge Cannon was nominated by Trump.

This is the businessman’s win. The Justice Department objected, arguing that an outside legal expert was unnecessary, in part because department officials had already completed the scrutiny to determine which documents were covered by the presidential privilege, the ones Trump wants to recover. The decision may slow the pace of the investigation, but it is unlikely to have an impact on the investigation’s decisions or the final outcome of the investigation.

Trump is under investigation for removing government documents from the White House, some of which have been classified as top secret, after his departure in January 2021 and keeping them at his Mar-a-Lago home in Palm Beach. The Justice Department also said it was investigating the potential disruption after the FBI uncovered evidence that the Trump team may have deliberately concealed classified documents when agents tried to retrieve them in June. During the same meeting on June 3, Trump’s representatives falsely asserted that they had diligently searched and returned all classified materials to the government – a claim that was later refuted after the FBI recovered about 33 boxes. It contains more than 11,000 government documents, photos, and more than 100 documents marked as classified.

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Trump’s legal team waited up to two weeks after an August 8 FBI search before asking the court to appoint a “special judge.” “Private Master,” for example, was used to examine materials seized in a search of the homes and offices of two former Trump lawyers, Rudy Giuliani and Michael Cohen. But Trump’s request was unique. Not only did his team want the special judge to review the client’s traditional attorney materials, but he also told Cannon that the special judge was appropriate because some documents could be subject to executive privilege, a legal principle that protects some White House communications.

The Justice Department vehemently opposed Trump’s request, saying he could not claim an executive privilege because the documents did not belong to him, but rather to the government. “He’s no longer the president,” Jay Pratt, an attorney with the Counterintelligence Department, told Cannon during the September 1 hearing. Since he was no longer president, he had no right to take those documents. The Justice Department also said there was no point in appointing a special judge because his liquidation team – a group of agents not part of the investigation – had completed their work. Agents have identified and set aside a limited number of documents that may be subject to professional secrecy. The rest of the documents were reviewed by the investigation team for the ongoing criminal investigation. Meanwhile, the Office of the Director of National Intelligence is already conducting a parallel review as part of the National Security Damage Assessment.

Several former Justice Department attorneys general, both Democrats and Republicans, have criticized Trump’s request to appoint a special judge. Trump’s former attorney general, Bill Barr, called the special judge a “waste of time” in an interview with Fox News. Even a group of former federal prosecutors who have all served in Republican administrations said Trump’s request was “unprecedented,” filed in unjustified court and “manifestly frivolous.” However, at the September 1 hearing, Cannon indicated its willingness to approve the request. “In the end, what is the harm in appointing a special director?” he asked.

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