The Justice Department and lawyers for Donald Trump filed separate proposals Monday for conducting an outside review of documents seized at the former president’s Mar-a-Lago home, with key disagreements over how the process should work and Trump’s team acknowledging that the criminal probe could lead to an indictment.
Both sides referenced a “draft plan” given to them by Judge Raymond J. Dearie, the newly appointed special master. Trump’s lawyers expressed concern that Dearie posed questions about the documents that the judge who appointed Dearie has left unasked, arguing that Trump might be left at a legal disadvantage if he answered them at this stage of the process.
Specifically, the legal team objected to what it said was Dearie’s request that it “disclose specific information regarding declassification to the Court and to the Government.”
Judge Aileen M. Cannon, who is overseeing the special master and document-review process, has not asked Trump’s lawyers to address whether about 100 documents with classified markings that were seized by the FBI on Aug. 8 might in fact not be classified.
Trump’s lawyers have repeatedly suggested in court filings that the former president could have declassified the documents — but they have not actually asserted that he did so.
In Monday’s filing, Trump’s lawyers wrote that they don’t want Dearie to force Trump to “fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order” — a remarkable statement that acknowledges at least the possibility that the former president or his aides could be criminally charged.
The Justice Department is investigating the possible mishandling of classified documents at Mar-a-Lago, and the possible hiding or destroying of government records. A key issue in the probe is that even after Trump’s team responded to a grand jury subpoena requesting all documents with classified markings that were being kept at Mar-a-Lago, with aides reportedly saying all relevant material had been handed over, the FBI search turned up about 100 more such documents.
The government’s filing Monday evening did not address how Dearie should review the classified documents. Prosecutors said they were waiting to see if the U.S. Court of Appeals for the 11th Circuit in Atlanta would grant their request to stay Cannon’s decision to include the classified documents in the special master review — leaving about 11,000 nonclassified documents and other items.
Prosecutors have said the classified material is by definition the property of the government and cannot be shielded from them by privilege. Cannon’s order barred prosecutors from using the classified materials in their criminal probe until the outside review is complete.
Dearie — a former chief federal judge in New York — is scheduled to meet for the first time with Trump’s lawyers and Justice Department prosecutors Tuesday afternoon. The session, in Dearie’s courtroom in the Brooklyn federal courthouse, will focus on how to proceed.
The Justice Department’s filing said a third-party vendor should be hired to scan the seized documents into a secure software system. Trump’s lawyers would then review the nonclassified documents and decide which should be shielded from criminal investigators because of attorney-client or executive privilege. Prosecutors would note any disagreement with Trump’s defense team, and Dearie would settle any disputes.
“FBI agents will attend and observe the scanning process to maintain the chain of custody of the evidence,” the government wrote.
In earlier filings, the Justice Department had unsuccessfully argued that a special master was unnecessary and that, as a former president, Trump could not assert executive privilege in this investigation. Prosecutors also said that temporarily barring the government from using the documents in its investigation could pose a national security risk.
But Cannon disagreed.
She has ordered Dearie to complete his review by Nov. 30 and said he should prioritize sorting through the classified documents, though she did not provide a timeline as to when that portion must be completed. The Justice Department said it hopes its Monday proposal helps complete the review in an “efficient and timely manner.”
Trump’s team said in its filing that the government should begin to make the classified documents available for review as soon as next week by Dearie — who previously served on the Foreign Intelligence Surveillance Court, which handles sensitive national security cases.
The Justice Department urged Dearie in its Monday filing to check in with the National Archives and Records Administration — the federal agency charged with maintaining and tracking government records — as he conducts the review.
It also proposed that Dearie conduct weekly reviews with the parties by video or audio conference to resolve questions and ensure smooth operation of the review process.
The government has said that it already reviewed all the seized documents prior to Trump requesting a special master, to separate out any that should be shielded from investigators because of attorney-client privilege. That filter team, approved by the magistrate judge who also approved the search warrant, set aside 64 sets of documents — made up of some 520 pages — that might be considered protected by attorney-client privilege, the government has said.