Judge considers temporary limit on DOJ access to Trump documents

WEST PALM BEACH, Fla. — A federal judge indicated Thursday that she’s seriously considering temporarily barring Justice Department investigators from reviewing material seized from Donald Trump’s Mar-a-Lago estate.

U.S. District Court Judge Aileen Cannon suggested that she’s considering issuing that limitation, while potentially allowing an exception for the intelligence community to continue reviewing national security risks from the potential exposure of the seized documents.

Justice Department attorneys pushed back sharply against that outcome, warning against any disruption to their ongoing criminal investigation of Trump’s handling of classified documents. Cannon, who previously said she’s inclined to appoint an outside review of the materials seized form Trump’s estate, appeared undeterred during a two-hour hearing that featured arguments from DOJ counterintelligence officials and Trump’s legal team.

Justice Department attorneys repeatedly pleaded with Cannon not to interrupt their ongoing criminal probe, emphasizing that the search warrant executed on Aug. 8 was clearly valid and authorized to obtain “evidence of three significant federal crimes.”

But Cannon said she was concerned about a couple of instances in which the investigative team had flagged potentially privileged material that was not screened out during the initial review of records by the DOJ “filter team” assigned to prevent such occurrences.

Trump’s attorneys repeatedly underscored the historic nature of the investigation into Trump, not a run-of-the-mill case about mishandled classified records.

“This is not a case about some Department of Defense staffer stuffing military secrets into a bag and sneaking them out in the middle of the night,” said James Trusty, one of three Trump attorneys handling the arguments.

Trusty argued that the government’s posture toward Trump misconstrues the role of the Presidential Records Act, which contemplates a give-and-take negotiation between a former president and the National Archives over retention of some records — and includes no criminal enforcement mechanism.

“They’re trying to criminalize … the judicially unenforceable Presidential Records Act, “Trusty said.

Trump's legal team is seeking the appointment of a so-called special master, who would review documents the FBI seized from his Mar-a-Lago estate last month after a federal magistrate judge here issued a search warrant for evidence of highly classified documents and obstruction of justice.

Cannon, a Trump appointee confirmed about a week after his defeat in the 2020 presidential election, indicated last week that she was inclined to grant Trump's request although she stopped short of approving it at that time.

Prosecutors also made clear that if Cannon does appoint a special master, that person's authority should be confined to doing a fresh look only for potential attorney-client communications and not extend to other information Trump has argued should be kept from investigators, such as records subject to executive privilege.

The court session Thursday also drew unusual attention for reasons beyond the potential special master appointment after the Justice Department used a filing in the case on Tuesday to air claims that Trump lawyers falsely asserted all documents marked classified were turned over in response to a grand jury subpoena issued in May.

That representation now appears to have been false: Prosecutors included a photograph from the Aug. 8 search showing a slew of documents with classification markings found discovered in Trump's Mar-a-Lago office. Trump seemed to acknowledge Wednesday that he was aware of the presence of classified documents in his office, criticizing agents for splaying the records on the floor rather than keeping them in the “cartons” he said they had been stored in.

Trump's lawyers faced the challenging task Thursday of trying to persuade the judge to appoint a special master with a broad mandate, while trying to avoid locking Trump into factual claims that could undermine potential a defense if he is ultimately charged.

Thursday's hearing was the first public court session Cannon has conducted on the matter since Trump filed a motion almost two weeks ago seeking outside oversight for the Justice Department probe.

Cannon usually sits at a federal courthouse in Fort Pierce, Fla., about an hour's drive north of here. However, she elected to hold Thursday's hearing at the older courthouse in West Palm Beach, about 3 miles from Trump's Florida home which also doubles as a private club.

It also marked the first public appearance by Christopher Kise, a veteran Florida litigator, in connection with the case since he was added to Trump's legal team in recent days.

Kise, a former Florida solicitor general who has argued before the U.S. Supreme Court, has been a longtime adviser to Republican officeholders in the state, including Gov. Ron DeSantis and former Govs. Rick Scott and Charlie Crist.

Trump on a Thursday radio show continued to insist he “declassified” documents, an assertion his lawyers did not make in their Wednesday filing.