Anthony Coley, a spokesperson for the department, said it was “reviewing the notice and considering appropriate next steps in the ongoing litigation.”
Cannon, a Trump appointee who was confirmed by the Senate a week after Trump lost in the 2020 election, has given the Justice Department and Trump’s lawyers until September 9 to submit a joint filing to propose a list of special master candidates and describe their functions and limitations. In the meantime, Cannon decided that the documents would not be returned to Trump.
The Justice Department has indicated that if Cannon were to make such a ruling, it would have to formally direct the department, a format that would allow for an appeal. In her order on Monday, she made the findings required for an appealable injunction, though she said she wasn’t sure those findings were required in this case.
In his ruling, Cannon specifically wrote that the appointment of a special master “will not preclude” the intelligence community’s ongoing assessment of whether Trump’s possession of the top-secret documents caused security harm. national of the United States. This review, which began in response to requests from Congress, is being led by the Office of the Director of National Intelligence.
Such an exclusion for the ODNI, however, could be potentially impractical because the FBI, an arm of the Department of Justice, is a member of the intelligence community and could be consulted as part of the ODNI’s assessment. A spokesperson for ODNI declined to comment on Cannon’s decision on Monday.
Director of National Intelligence Avril Haines described the review to lawmakers last month as an “assessment of the potential risk to national security that would result from the disclosure of relevant documents.” She also said her office was working with the Justice Department on a review of the classification of documents seized from Trump’s estate in Florida, pledging not to “unduly interfere with the ongoing criminal investigation of the DOJ”. It’s unclear how Cannon’s order would affect this review.
Cannon based his decision primarily on Trump’s claims about the potential harm of documents becoming public. She noted that a still-sealed report of items seized by a Justice Department “screening team” – tasked with screening attorney-client privileged material – said that “medical documents, tax-related correspondence and accounting information” was part of it.
Cannon also described “leaks” to the media of information related to the seized materials as a potential risk for Trump, though she admitted she was unsure where the alleged leaks came from.
She also repeatedly underlined the extraordinary circumstance of the search of the residence of a former president.
“Based on the applicant’s former position as President of the United States, the stigma associated with entering the subject is unique,” she wrote. “A future indictment, based in any degree on property that should be returned, would result in reputational damage of a decidedly different order of magnitude.”
Cannon also criticized the government’s process for filtering out potentially privileged material, noting that investigators twice revealed that they flagged potentially privileged material that was not filtered out by the screening team.
Lawyers for the Justice Department said the flags were actually “examples of how the screening process works.”
“The Court is not so sure,” Cannon wrote. “These cases are certainly demonstrative of the integrity on the part of the investigative team members who returned the potentially privileged material. But they also indicate that on more than one occasion, the initial review of the Privilege Review Team was unable to identify any potentially privileged items.”
Cannon, citing Nixon-era case law in which the Justice Department said it decisively undermined Trump’s efforts to invoke executive privilege, dismissed the government’s assertion that Trump could never , in these circumstances, being able to successfully assert executive privilege to block departmental review of documents. .
“The Supreme Court did not rule out the possibility of a former president prevailing over an incumbent president on issues of executive privilege,” she wrote.
Cannon noted that Trump did not claim executive privilege over any of the materials seized from his home. Notably, Trump opted out of taking the case to court in May, when the Justice Department first expressed interest in reviewing classified documents taken from his home and the National Archives cleared the investigation. access to investigators following Trump protests.
In her new order, the judge did not rule in favor of Trump’s claims of privilege over specific documents. On the contrary, she has created a process for him to raise such questions. However, it seems likely that the process could delay by weeks or months the government’s investigation, which a prosecutor said was still in its early stages.
Special handlers are usually appointed in cases in which an attorney’s office is raided or a phone is seized in order to prevent the disclosure of inside information to investigators. The Justice Department has pointed out that Trump’s home does not fit into that traditional rubric. But Cannon noted that courts have the discretion to appoint special masters to promote the appearance of fairness.
“It is true that special masters usually arise in the more traditional setting of law firms and law offices,” she wrote. “But the Court fails to see why these concerns would not apply, at least in large measure, to the office and home of a former president.”
She also cited the recent example of a special master commissioned in the case of the conservative organization Project Veritas, whose leaders’ phones were seized as part of an ongoing investigation. In this case, Cannon noted, a special master was appointed even though the search did not directly involve an attorney.
Among the logistical issues Cannon left hanging on Monday was whether the government will have to pick up the bill for the special master, whether Trump has to, or whether he will share the cost.
Josh Gerstein contributed to this report.