'The horse is out of the barn'
The Justice Department said Monday its special "filter team" has completed its review of the documents taken from Mar-a-Lago during an Aug. 8 raid, complicating former President Donald Trump's request that a "special master" review the documents before criminal investigators examine them. U.S. District Judge Aileen Cannon said Saturday that her "preliminary intent" is to approve Trump's request, setting a Thursday hearing to discuss the matter.
Before Saturday's preliminary order, a court-approved "Privilege Review Team" had already "completed its review of those materials" and "identified a limited set of materials that potentially contain attorney-client privileged information," the Justice Department told Cannon. According to the search warrant affidavit, the special review team was sent to search Trump's office in Mar-a-Lago and reviewed the seized material for any "containing potentially attorney-client privileged information."
Trump's team did not request a special master to filter out papers potentially shielded by attorney-client privilege, however; they asked for removing items protected by executive privilege.
"Legal experts have raised doubts about how that would apply in this context," Politico notes. "Under the Presidential Records Act, ownership of official White House records transfers to the National Archives when a presidency ends," and executive privilege is typically invoked by a sitting president to shield communications with the courts or Congress, not an executive branch agency like the Justice Department. And the Justice Department already rejected Trump's executive privilege claims with a previous batch of presidential records.
"I think this issue of executive privilege is a loser," law professor and former federal prosecutor Barbara McQuade tells The New York Times. "Even if this judge rules in his favor, they can appeal it, and it seems very likely the government would prevail." Also, Trump's lawyers waited two weeks to ask for special review, giving the Justice Department ample time to examine the documents, she added. "The horse is out of the barn."
The Justice Department also noted in Monday's filing that U.S. intelligence agencies are doing a separate classification review of the documents taken from Mar-a-Lago — possibly clarifying "Trump's questionable claims that he had declassified everything that he took to his Florida residence," the Times reports — and an assessment of potential risks to national security from Trump's storage of top secret government files in an unsecured location.