Justice Dept. Has Reviewed Documents Seized in Mar-a-Lago Search

The Justice Department has set aside documents seized from former President Donald J. Trump’s Florida estate potentially covered by attorney-client privilege, a maneuver that might make his efforts to have an independent arbiter review the materials unnecessary.

The disclosure, which came in a court filing on Monday, is based on the government’s initial analysis of the materials. It came as Mr. Trump’s lawyers pressed a federal judge in Florida to order the appointment of an outside expert, known as a special master, to review the trove of highly sensitive documents seized in a search of Mar-a-Lago, the former president’s private club and residence.

On Saturday, Judge Aileen M. Cannon of Federal District Court for the Southern District of Florida suggested she was leaning toward the appointment of a special master to look at the materials taken by federal agents from Mar-a-Lago. She ordered the Justice Department to respond by Tuesday and share a complete list of documents, some of them highly classified, taken in the search on Aug. 8.

Mr. Trump’s request for a special master — which was filed far later than is typical — is significant because it could provide his legal team with an opportunity to contest the government’s seizure of specific documents whose ownership, and possibly classification levels, they see as being in dispute.

But the Justice Department’s three-page filing on Monday, noting that its review of the materials was completed, threw up a significant obstacle to that request. In the filing, lawyers at the department disclosed that its privilege review team had finished its assessment of the documents and set aside “a limited set of materials that potentially contain attorney-client information,” a requirement that was mandated by the original search warrant issued by a federal magistrate judge in Florida this month.

Takeaways From the Affidavit Used in the Mar-a-Lago Search

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Takeaways From the Affidavit Used in the Mar-a-Lago Search

The release on Aug. 26 of a partly redacted affidavit used by the Justice Department to justify its search of former President Donald J. Trump’s Florida residence included information that provides greater insight into the ongoing investigation into how he handled documents he took with him from the White House. Here are the key takeaways:

Takeaways From the Affidavit Used in the Mar-a-Lago Search

The government tried to retrieve the documents for more than a year. The affidavit showed that the National Archives asked Mr. Trump as early as May 2021 for files that needed to be returned. In January, the agency was able to collect 15 boxes of documents. The affidavit included a letter from May 2022 showing that Trump’s lawyers knew that he might be in possession of classified materials and that the Justice Department was investigating the matter.

Takeaways From the Affidavit Used in the Mar-a-Lago Search

The material included highly classified documents. The F.B.I. said it had examined the 15 boxes Mr. Trump had returned to the National Archives in January and that all but one of them contained documents that were marked classified. The markings suggested that some documents could compromise human intelligence sources and that others were related to foreign intercepts collected under the Foreign Intelligence Surveillance Act.

Takeaways From the Affidavit Used in the Mar-a-Lago Search

Prosecutors are concerned about obstruction and witness intimidation. To obtain the search warrant, the Justice Department had to lay out possible crimes to a judge, and obstruction of justice was among them. In a supporting document, the Justice Department said it had “well-founded concerns that steps may be taken to frustrate or otherwise interfere with this investigation if facts in the affidavit were prematurely disclosed.”

A deeper “classification review” of the intelligence implications of Mr. Trump’s retention of government documents by the F.B.I. and the director of national intelligence is continuing, the filing revealed. The government affidavit, filed to justify the search, revealed concerns in the intelligence community that Mr. Trump’s possession of highly classified materials could compromise “clandestine human sources” collecting information overseas.

In both court papers and public statements, Mr. Trump and his lawyers have argued that some of the material seized at Mar-a-Lago could be protected by executive privilege, a vestige of his service as president. But legal scholars and some judges have expressed skepticism that former presidents can unilaterally assert executive privilege over records from their time in the White House. That power, the scholars and judges say, generally resides with the current president.

While Mr. Trump and his legal team have advanced arguments about executive privilege, most of the cases they cited in their filing asking for a special master concerned independent reviews of seized documents for those shielded by attorney-client privilege.

The case involving Mr. Trump’s attempt to get a special master has been hindered from the start by sloppy legal work and unusual procedures. That has happened, in part, because the request for a special master was filed separately from a matter it is deeply entwined with: the court fight over unsealing portions of the warrant affidavit used to justify the search of Mar-a-Lago.

Last week, after receiving an initial attempt by Mr. Trump’s lawyers to request a special master, Judge Cannon asked them, in a rare rebuke, to send her clarifications about what precisely they were asking for and why she should handle the case and not Judge Bruce E. Einhart, who handled the unsealing of the warrant.

More on the Trump Documents Inquiry

  • An Unparalleled Test: The Justice Department’s effort to retrieve national security documents from former President Donald J. Trump has turned into one of the most complex criminal investigations in recent memory.
  • Scrambling to Find an Argument: Mr. Trump’s hastily assembled legal team has tried out an array of defenses as it seeks to hold off the Justice Department.
  • Was There Obstruction?: The redacted affidavit released by the Justice Department on Aug. 26 included information indicating that prosecutors had evidence suggesting efforts to impede the recovery of documents  — a scenario that could raise significant legal peril for Mr. Trump.
  • Human Intelligence Sources: The affidavit showed that the Mar-a-Lago search was spurred by the discovery that Mr. Trump had kept classified material related to the use of clandestine human sources that are the lifeblood of any espionage service.

Then, after she received a supplemental filing from Mr. Trump’s legal team answering her questions, Judge Cannon took the unusual step of issuing a document that signaled her “preliminary intent” to appoint a special master even before she sought the Justice Department’s opinion on the matter or held a hearing on the questions. A hearing is set to take place on Thursday in West Palm Beach, Fla.

In advance of the hearing, the Justice Department is also expected to file on Tuesday a detailed inventory of the materials seized. But that list, which will go into greater depth than the nominal description in the search warrant that was unsealed this month, will be filed under seal.

Attorney General Merrick B. Garland and the department’s leaders have yet to decide if they will seek to unseal that document, according to officials.

Judge Cannon will now have access to the government’s own assessment of the materials, and she could have the information needed to rule on requests by Mr. Trump’s team to exclude individual documents.

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