Fri. Sep 30th, 2022

WASHINGTON — As president, Donald J. Trump employed a consistent and largely successful strategy for fending off congressional oversight investigations: stonewall until the fight reached the courts. Even if judges eventually rejected his legal claims, he could use the slow pace of litigation to run out the clock.

Facing a criminal investigation into the failure to return government documents — which the National Archives had repeatedly asked him for since May 2021, and the Justice Department had subpoenaed this past May — the former president is now putting forward another potential source of delay.

He has asked a judge to appoint an outside arbiter, known as a special master, to sift through all the records the F.B.I. seized in its Aug. 8 search of his Mar-a-Lago estate and identify any deemed potentially covered by executive privilege. Those showing confidential deliberations with aides about his official actions would then be kept from the F.B.I.

Appointing a special master could block the government from continued access to the files until the special master has gone through them and would potentially pave the way for lengthy litigation that could bog down the investigation.

As a matter of substance, the request is puzzling. Mr. Trump’s lawyers made it far too late, so the F.B.I. has already seemingly examined everything. Indeed, on Monday, the Justice Department said it had reviewed documents seized in the search and set aside those possibly covered by attorney-client privilege — a different issue from the one Mr. Trump had raised.

“They’ve already looked at it,” said Barbara L. McQuade, a University of Michigan law professor who was the U.S. attorney for the Eastern District of Michigan from 2010 to 2017. “The horse is out of the barn.”

Moreover, Mr. Trump already tried to assert executive privilege to block the F.B.I. from examining boxes of files the National Archives had earlier retrieved from Mar-a-Lago. That assertion failed after President Biden did not back him and the Justice Department advised the agency that the needs of a criminal investigation can outweigh the privilege.

But the Trump appointee overseeing the former president’s request, Judge Aileen M. Cannon of Federal District Court for the Southern District of Florida, had already signaled her intent to appoint a special master before even asking the Justice Department to respond.

A hearing is scheduled for Thursday in West Palm Beach, Fla. Judge Cannon may change her mind after the Justice Department presents its arguments.

The government apparently has a lot to say. Its three-page filing on Monday indicated it would soon provide “more detail in its forthcoming supplemental filing.” Hours later, it requested permission to file a reply that would exceed the court’s usual limits — and was granted it.

Any injunction blocking the government from continued access to the files while a special master, either a judge or a former official with high-level security clearance, reviews them could cause difficulties.

While the F.B.I. has already had weeks to assess the documents for fairly straightforward investigative reasons — determining whether they were government files or contained national security secrets — the government is also scrutinizing them for another, far more complicated purpose.

The Office of the Director of National Intelligence has begun to assess the possible risks to national security if they had been compromised by being stored insecurely at Mr. Trump’s club.

The office and the Justice Department are also conducting a deeper “classification review” of the records, the filing also revealed. That effort could bring clarity to Mr. Trump’s questionable claims that he had declassified everything that he took to his Florida residence.

Both of those efforts, along with the criminal investigation into Mr. Trump’s retention of sensitive government materials, would also be disrupted if the judge were to order the government to stop looking at the files while a special master conducted a review.

Stephen I. Vladeck, a University of Texas law professor who specializes in national security and federal courts, said the Justice Department would immediately appeal any injunction.

Such an appeal would play out not just on its legal merits, but also on how quickly judges moved before issuing a ruling that will itself be subject to further appeal. (Seven of the 11 judges on the appeals court that would hear the case are Republican appointees, including six selected by Mr. Trump.)

The appointment of a special master would also prompt other novel legal questions, raising the possibility of time-consuming litigation to resolve them.

For example, if a special master determines that the government had no legal right to seize certain property in a search, the special master typically recommends that the judge order that property returned.

But Mr. Trump does not own the documents. When their role in the case is resolved, they should be sent to the National Archives, meaning the government would still have them.

One question raised by that scenario is whether Judge Cannon could order the government not to show a document to a grand jury or use it as evidence in any future criminal case. Such an order would have scant precedent.

Given those possibilities, Samuel Buell, a Duke University professor of criminal law and former federal prosecutor, called the prospect of a special master at this stage “strange.”

“I think we might be taking this a little too seriously in terms of trying to actually puzzle it through,” he said. “The more you think about it, the more it just doesn’t fit normal procedures. So it could just be throwing dust in the air.”

Another source of confusion is what kind of privileged materials matter: those subject to attorney-client privilege, meaning they show confidential communications with lawyers about legal matters, or executive privilege?

The F.B.I. anticipated that there would be a need for special handling of materials that are potentially subject to attorney-client privilege. The affidavit said it created a “privilege review team” to identify any such materials and keep them from the investigative team.

But Mr. Trump’s request for a special master did not mention attorney-client privilege. Instead, the filings submitted by his lawyers have mentioned only executive privilege.

That focus has raised eyebrows. Ms. McQuade noted that the privilege is generally a tool for keeping internal executive branch matters secret from people outside the executive branch, like Congress. But the Justice Department is part of the executive branch, and the incumbent president, Mr. Biden, has already demonstrated he will not back Mr. Trump’s invocation.

“I think this issue of executive privilege is a loser,” she said. “Even if this judge rules in his favor, they can appeal it, and it seems very likely the government would prevail.”

Mr. Trump’s attempt to get a special master has been hindered by sloppy legal filings and unusual procedures. His request was filed separately from the court fight over unsealing files related to the warrant to search Mar-a-Lago.

Last week, after receiving an initial request by Mr. Trump’s lawyers, Judge Cannon asked them to clarify basic questions like what they were asking for and why she should handle the case and not the magistrate judge, Bruce E. Reinhart, who handled the warrant.

The Trump legal team’s filings did not mention that he has already tried and failed to keep the F.B.I. from looking at an earlier set of 15 boxes of government files he had been keeping at Mar-a-Lago and permitted the National Archives to retrieve in January — about eight months after it first asked him to return missing files.

After the National Archives told Mr. Trump that it intended to show the boxes — which contained files marked highly classified — to the F.B.I., he told the agency not to do so and cited executive privilege, according to a May letter from Debra Steidel Wall, the acting head of the National Archives, to Mr. Trump’s lawyers.

The Supreme Court has ruled that former presidents have some residual powers of executive privilege over their own administration’s files, but that they will view it with less deference if the current president disagrees. In this case, Mr. Biden delegated his authority to Ms. Wall.

Ms. Wall moved swiftly, consulting the Justice Department’s Office of Legal Counsel and then rejecting Mr. Trump’s invocation of the privilege, her letter showed. But if Judge Cannon appoints a special master and prevents the government from using the files, the ensuing fight would play out in a court system Mr. Trump knows how to navigate slowly.



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