In order to allow for the appointment of an impartial special master to analyze the data, attorneys for former President Donald Trump requested a federal court to stop the FBI’s study of papers that were retrieved from his Florida residence earlier this month.
The request was a part of a federal lawsuit, the first one Trump’s legal team has filed in the two weeks since the search, which broadsides the FBI investigation into the discovery of secret documents at Mar-a-Lago and foreshadows arguments his attorneys will likely make as the investigation develops.
It comes as The New York Times reported that since Trump left office, the government has collected more than 300 papers marked secret from Mar-a-Lago, including more than 150 that were found by the National Archives in January and were a contributing factor in the criminal probe.
The Aug. 8 search, during which the FBI claimed to have retrieved 11 sets of secret papers from Mar-a-Lago, is described as a “shockingly aggressive approach” in the complaint. Additionally, it claims that the search is too broad, that Trump is entitled to a more thorough explanation of the documents that were taken from the house, and that the FBI and Justice Department have long treated him “unfairly.”
“Law enforcement serves as a cover for America. It cannot be used as a tool for political ends, the attorneys said in a letter sent on Monday. “Therefore, in the wake of an extraordinary and unwarranted raid at Mar-a-Lago, we request judicial intervention.”
Although he hasn’t offered any proof to back up this allegation, Trump said in a second statement that “ALL materials have been previously declassified” and that the data had been “illegally confiscated from my house.” In a succinct three-sentence response, the Justice Department said that the search had been approved by a federal court after the FBI showed evidence of a crime having been committed.
The filing asks for the appointment of a special master who is unrelated to the case and whose job it would be to examine the documents retrieved from Mar-a-Lago and set aside any that fall under the umbrella of executive privilege, which allows presidents to keep some communications from being made public.
This position has been filled by a former judge in a few other high-profile cases, such as the investigations against Rudy Giuliani and Michael Cohen, two of Trump’s personal lawyers.
“The American people is paying attention to this issue. Merely “reasonable” measures are insufficient when President Trump’s constitutional rights and the assumption of executive privilege are at stake, according to the lawyers’ letter.
The documents were produced when Trump was in the White House, according to the complaint, thus they are “presumptively protected.” The Supreme Court said in January that the situation is novel and poses “serious and significant problems,” but it has never ruled on whether a former president may claim executive privilege over materials.
The high court rejected Trump’s request to prevent the National Archives from turning over records to the Jan. 6 committee, stating that there was no need to deal with the complex matter of a former president’s claims because his request would have been rejected even if he had been the current president.
According to the complaint, members of Trump’s household and personal staff were made available for voluntary interviews. It also quotes Trump as stating to FBI and Justice Department officials during a visit to Mar-a-Lago in June, “Whatever you need, just let us know.”
However, it is evident from the timeline of events that the search was only conducted after prior attempts to remove secret materials from the house had either failed or been ineffective. For instance, the Justice Department submitted a subpoena for data with classified marks in May, only weeks before the search.
U.S. District Judge Aileen M. Cannon, who was nominated by Trump in 2020 and approved by the Senate with a vote of 56-21 later that year, was given the case brought by the Trump campaign. She worked as an assistant U.S. attorney in Florida for many years, mostly handling criminal appeals.
The National Archives, which earlier this year retrieved 15 boxes of records and other items from the estate that were supposed to have been turned over to the organization when Trump left the White House, referred the matter to the FBI, which launched the months-long investigation after the Mar-a-Lago search became public. Initial analysis of the information led to the conclusion that Trump had taken to Mar-a-Lago many more papers that were classified, including presidential records.
In June, representatives from the FBI and the Justice Department went to Mar-a-Lago and requested access to a storage room. A few weeks later, the Justice Department issued a subpoena for the estate’s security camera footage. According to a source familiar with the investigation who was not allowed to publicly discuss it, after the meeting at Mar-a-Lago, investigators questioned another witness who informed them that there were probably still further classified materials at the estate.
Separately, a federal judge recognized on Monday that redactions to an FBI affidavit describing the search’s justification would be so broad as to render the document “meaningless” if made public. But he said that given the “strong” public interest in the probe, he still holds the opinion that it shouldn’t be completely kept under seal.
U.S. Magistrate Judge Bruce Reinhart reiterated his remarks from last week’s hearing in a written order, in which he asked the Justice Department to suggest redactions for the material in the affidavit that it wishes to keep confidential. It must be submitted by Thursday at noon.
Justice Department officials have fought to keep the full document under wraps because they believe that releasing even a small piece of it may compromise an ongoing criminal investigation by leaking witness information or investigative methods. They have informed the court that the affidavit would need to have so many redactions that the document would be essentially rendered worthless for the public and devoid of any meaningful content.
“I cannot say at this moment that partial redactions will be so broad that they would result in a meaningless disclosure, but I may eventually reach that determination after hearing more from the Government,” wrote Reinhart in his ruling on Monday, acknowledging that possibility.