A federal judge on Monday agreed to appoint a special master to review records seized by the FBI during its search of former President Donald Trump's Florida estate, a move that is likely to delay the Justice Department's criminal investigation.
In her ruling, US District Judge Aileen Cannon in West Palm Beach, Florida, granted Trump's request for a special master, an independent third party who is sometimes assigned in sensitive cases to review materials that could be covered by attorney-client privilege.
Cannon said the person will be tasked with reviewing documents that are not just covered by attorney-client privilege, but any records possibly covered by executive privilege as well.
The decision to allow a special master to review documents that could be covered by executive privilege, a legal doctrine that can shield some White House records from disclosure, is uncharted legal territory.
Cannon also ordered the Justice Department to stop reviewing the records as part of its criminal investigation, a move that will likely at least temporarily hinder its ability to continue investigating.
However, Cannon said US intelligence officials could continue conducting their review into whether the records could pose any damage to national security if exposed.
Trump is under investigation for removing government records, some of which were marked as highly classified, from the White House after he departed in January 2021, and storing them in his home at his Mar-a-Lago estate in Palm Beach.
The Justice Department has said it is also investigating possible obstruction, after the FBI uncovered evidence that Trump's team may have deliberately concealed classified documents when agents tried to recover them in June.
If the special master decides some of the material is covered by Trump's executive privilege claims, it could hamper the government's investigation.
Cannon, who was appointed by Trump in 2020 just months before he left office, rejected the government's argument that the records belong to the government and that Trump is no longer president and therefore cannot claim executive privilege.
She gave Trump's legal team and the Justice Department until Friday to jointly file a proposed list of special master candidates. Whomever the court ultimately taps will need to have the requisite security clearances and legal expertise.
It is unclear whether the Justice Department will appeal Cannon's ruling, or on what basis it would do so.
"The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation," Justice Department spokesman Anthony Coley said.
Representatives for Trump did not respond to a request for comment.
However, in a post on his Truth Social platform following Cannon's ruling, Trump wrote: "Remember, it takes courage and 'guts' to fight a totally corrupt Department of 'Justice' and the FBI."
A whole lot of special treatment
Some legal experts on Monday called the judge's order deeply flawed.
"This is not something courts do," said Jonathan Shaub, a former Justice Department attorney.
He said it was odd for Cannon to block the Justice Department from reviewing the records at this stage in the investigation, before an indictment has even been returned.
"It's giving a whole lot of special treatment," Shaub said.
Cannon in her ruling justified her actions by claiming that Trump faces the stigma of having had his home searched, and any future indictment based on the seizure of those records would cause "reputational harm."
Trump, without evidence, has accused the Justice Department of launching a partisan witch-hunt against him. His lawyers argued that the appointment of an independent third-party to review the materials would be an important check on the government.
The Justice Department argued that it made no sense to appoint a special master because its filter team - a group of agents who are not part of the investigation - had completed its work.
The agents located and set aside about 520 pages that could be subject to attorney-client privilege, prosecutors said at a September 1 hearing. The rest of the records have already been reviewed by the investigative team for the criminal probe.
In her ruling on Monday, Cannon said she has lingering concerns about how the Justice Department has conducted its privilege review, saying she was aware of at least two instances in which members of the investigative team were exposed to materials which were later designated as potentially privileged.
"Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process," she wrote.
Many former Justice Department attorneys, both Democrats and Republicans, have criticised Trump's call for a special master.
"I don't think a special master makes sense in connection with executive privilege material," former Attorney General Bill Barr, a Trump appointee, told Reuters in an interview.
"If the documents are subject to executive privilege they involve official deliberations about executive actions, and by definition, those documents belong to the government."
John Bolton, Trump's former national security adviser who also previously served as assistant attorney general in charge of the Justice Department's Civil Division, called the judge's ruling "amateurish" and not well-reasoned.
"My recommendation to the Justice Department is to appeal immediately the temporary injunction, but cooperate and expedite the actual implementation of the judge's order," Bolton said in an interview.