A federal judge on Monday granted former President Donald Trump’s request for an independent expert to review documents, photographs and other items seized by the FBI last August from the registry of Mar-a-Lago, his Palm Beach, Fla., home 8. At the time, Judge Aileen Cannon, who was appointed by Trump to the position she holds in federal court in South Florida, barred the government from continuing to use those documents in its investigations until the independent expert reviewed them.
The main consequence is that the investigations are closed by the court decision. Investigators can continue their investigations on other fronts, but not with the confiscated material. In any event, the Justice Department tries not to take decisive steps or make relevant announcements in highly politically charged cases on the eve of the elections, and there are still a little more than two months until the general election, which will also help in the coming weeks, as expected not much news on the case.
In the 24-page decision released today by Judge Cannon, she notes that “a special expert will be appointed to review the seized assets and administer the allegations of privilege [ejecutivo o abogado-cliente] and make recommendations in this regard and evaluate the claims for the return of the goods”.
The judge also “temporarily prohibits the government from reviewing and using the seized materials for investigative purposes until the special master’s review is complete or a new court order is issued.” The government can still review the documents and use them for intelligence classification and national security assessment purposes, but not for investigations as such.
The precise details and mechanics of the review process will be determined by Cannon upon receipt of relevant proposals from the parties. For now, he has asked both Trump’s attorneys and the Justice Department to come up with a list of potential candidates to serve as an expert witness.
Trump’s lawyers had requested this review, among other things, if there were documents that could jeopardize the privilege of the attorney-client relationship, i.e. professional secrecy, with regard to the relationship between the parties. The Justice Department countered that it formed a separate filtering team from the investigative team to identify these potential documents and that it had already separated 520 pages of documents potentially affected by this privilege, arguing that no further review was required is required.
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Not only does Cannon question the screening process used, but he also claims that even when they pass the test of the process, they are not always perceived as being as impartial as independent experts. “Now more than ever, a commitment to appearances of fairness is essential,” he states in his letter.
The other privilege Trump’s attorneys claimed is executive privilege, which allows a president or members of the administration to opt out of the release of certain information. Usually it is used to refuse service of documents to the judiciary or legislature, and the State Department argued that it could not be invoked against the government itself.
The judge hesitates, but again agrees with Trump’s lawyers. He says it’s not clear if there’s an opportunity to invoke that privilege in this case, but at least Trump has an opportunity to invoke it and that an expert should check the papers. “The investigation and treatment of a former president is of unique interest to the general public, and the country is better served by an orderly process that encourages interest and a perception of justice,” the judge added.
The decision is a victory for Trump that at least buys time. The Justice Department used its response to the former president’s request to provide some additional details about the investigation, exposing him and supporting a possible obstruction of justice charge. He also posted a very descriptive photo of the type of papers Trump kept, with many folders containing confidential information. Trump’s lawyers complained in a letter to the judge that the photo was released for no real reason, just for “dramatic” effect.