Special master appointed to review documents from Mar-a-Lago search
(CNN) — A Brooklyn-based federal judge was selected on Thursday to serve as an independent arbiter to review the materials seized in the FBI’s search of former President Donald Trump’s Florida home.
The special master will be Senior Judge Raymond Dearie, who was put forward as a possible candidate for the special master role by Trump, who had sued in court to obtain the review. The Justice Department also endorsed Dearie’s appointment.
US District Judge Aileen Cannon also rejected the Justice Department’s bid to resume its criminal investigation into classified documents seized at Mar-a-Lago last month. The denial sets the stage for the department’s dispute with Trump over the search to move quickly to an appeals court and potentially the US Supreme Court.
An intelligence community review of the documents has been paused since last week when Cannon ordered the criminal investigation to stop for the moment. DOJ says the two reviews cannot be separated and plans to appeal.
Cannon gave the special master a deadline of November 30 to finish his review of potentially privileged documents. The schedule puts the review ending after the midterm congressional elections — essentially guaranteeing the Mar-a-Lago investigation will move slowly for the next two months, unless a higher court steps in.
Appointed by Reagan, Dearie takes center stage
Dearie sits on the district court for the Eastern District of Brooklyn, where he has taken senior status — meaning his workload has been lightened significantly as he nears the end of his time on the federal bench.
He was appointed as a judge by Ronald Reagan in 1986 and was for a time the chief judge of the Brooklyn-based district court. He also served a seven-year term, concluding in 2019, on the US Foreign Intelligence Surveillance Court.
In his role as a FISA judge, Dearie was one of the judges who approved one of the Justice Department’s request to surveil former Trump campaign foreign policy adviser Carter Page, as part of the federal inquiry into Russia 2016 election interference.
The department’s process for securing FISA warrants for Page was riddled with errors and sloppiness, a DOJ inspector general review later found. The IG’s review pointed to omissions and mistakes in the FBI’s court filings supporting the FISA applications, including in filings submitted to Dearie.
Trump has railed against how the FISA warrants against Page were obtained, making his recommendation of Dearie to review the Mar-a-Lago search notable. Legal observers across the ideological spectrum, including vocal Trump critics, also backed the choice.
Cannon not convinced pausing criminal probe put national security at risk
In her ruling rejecting the Justice Department’s bid to resume the criminal probe, Cannon said she was unconvinced that pausing the criminal investigation’s review of the documents would cause irreparable harm.
The department argued that the intelligence community’s assessment of national security risks — which Cannon previously said could go forward — was being impeded by the hold she had put on the criminal probe’s use of the documents.
“First, there has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property. Instead, and unfortunately, the unwarranted disclosures that float in the background have been leaks to the media after the underlying seizure,” she wrote.
She also rejected the argument the department had made that the intelligence community assessment could not be decoupled from the criminal probe.
While it may be “easier” Cannon said, “for the Government’s criminal investigative work to proceed in tandem with the Security Assessments,” the Justice Department had not convinced her that the intelligence community’s assessment was being impeded by it.
Pointing to examples that prosecutors had offered of how the national security assessment would rely on the criminal probe’s work, Cannon said that the prosecutors “do not firmly maintain that the described processes are inextricably intertwined, and instead rely heavily on hypothetical scenarios and generalized explanations that do not establish irreparable injury.”
More than 100 documents marked as classified seized
Trump filed the lawsuit seeking the special master two weeks after the Justice Department executed the search on his Florida residence and resort. Prosecutors are investigating at least three potential crimes: violations of the Espionage Act, illegal handling of government records and obstruction of justice.
During the search, according to court filings, investigators seized more than 100 documents marked as classified, which were obtained after Trump’s representatives were served a subpoena in May demanding they return to the government all such documents. When the FBI traveled to Mar-a-Lago in June to collect the documents, one of his lawyers signed a certification asserting the subpoena had been complied with.
Trump, in his filings in the special master case, argued that his constitutional rights had teen trampled upon with the August 8 search, though Cannon herself had previously said she did not agree that the judicially authorized search amounted to a “callous disregard” of the former President’s rights.
According to her order on September 5 initially granting Trump’s request for a special master review, Cannon decided it was necessary to bolster public trust in the search and because Trump, as a former president, faced increased risks of reputational harm if an indictment was wrongfully brought against him.
Trump claimed on Hugh Hewitt’s radio show Thursday that he declassified the government records that were taken to Mar-a-Lago, but that’s not an argument that he’s made in any legal setting.
Cannon’s order on Thursday also raised doubts all the documents with classification markings were actually classified.
“The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion,” she said, referring to the Justice Department’s assertions that the documents are presumably classified and that Trump could not possibly have a possessory interest in any of them.