The special master picked to review more than 11,000 records removed by the FBI from former President Trump’s Mar-a-Lago estate last month has set out his plan of action, with a tight schedule and the intention of wrapping up the record review in late October.
On Wednesday, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit stayed a lower court decision to have special master Raymond Dearie evaluate about 100 classified records, which would have prevented the Justice Department from using the records as part of its criminal investigation while the review took place.
For the record:
11:08 a.m. Sept. 23, 2022An earlier version of this article stated that the circuit court would review the special master’s work. The district court will do the review. The article also stated that the special master questioned whether the D.C. Circuit Court should decide whether Trump’s items should be returned. He questioned whether the U.S. District Court for the Southern District of Florida magistrate judge who issued the original warrant should have jurisdiction.
With that resolved, Dearie, the former chief judge of the federal court in Brooklyn, has set a breakneck schedule to review documents seized by the FBI during the court-approved Aug. 8 search of Trump’s Palm Beach, Fla., home; to segregate any that may be covered by claims of attorney-client privilege or executive privilege; and to determine whether any of the materials should be returned to Trump. Once the review is complete, Dearie will submit a report of his recommendations to U.S. District Judge Aileen Cannon.
Dearie said in his filing that he had enlisted the help of James Orenstein, former U.S. magistrate judge for the Eastern District of New York, at a proposed rate of $500 an hour. Cannon has already ruled that Trump is responsible for the costs of the special master’s review.
Dearie said he would not seek compensation for himself because he is still on the bench, but said he would be tasking staff from the Eastern District to help weed through the documents. The next status conference on the review is scheduled for Oct. 6 by telephone.
Trump has until next Friday to file an affidavit objecting to the inventory, including listing any items that were taken that don’t appear on the list, or items that the list says were removed that he disputes were on his property. Trump and his allies have repeatedly alleged that the FBI planted evidence during its search, though his lawyers have not made that claim in court.
“This submission shall be Plaintiff’s final opportunity to raise any factual dispute as to the completeness and accuracy of the Detailed Property Inventory,” Dearie stated.
Dearie also instructed the government and Trump’s legal team to agree by Friday on a third-party vendor to digitize the records, and stipulated that the vendor would have three days to make the records available electronically so the review can begin.
Trump’s legal team was also instructed to provide any assertions it will make about each record in these categories: attorney-client communication privilege; attorney work product privilege; executive privilege that prohibits review of the document within the executive branch; executive privilege that prohibits dissemination of the document to persons or entities outside the executive branch; and whether the document is considered a presidential record or a personal record under the Presidential Records Act of 1978.
For any document that Trump designates as privileged or personal, he must include a brief statement explaining the basis for the designation.
Dearie instructed Trump’s team to provide periodic updates on Trump’s assertions and to make a final determination about what the former president wants to claim with regard to all 11,000 records by Oct. 14.
The Justice Department and Trump’s lawyers must also try to resolve as many disputes over the records as possible, though Dearie said he would step in to resolve disputes throughout the process. The department and Trump’s lawyers are required to submit a final log of disputes by Oct. 21.
Trump’s legal team received the documents that the FBI’s filter team identified as falling under attorney-client privilege on Sept. 16; the former president’s legal team has been instructed to begin by reviewing those documents and asserting any such claims on them.
Dearie said that once the district court has reviewed his work, he will consider any motion Trump files for the return of property. Trump would need to address whether such a claim should be resolved by Cannon or by the U.S. District Court of the Southern District of Florida magistrate judge who issued the search warrant.