Mar-a-Lago Search Takes Disappointing Turn After Court Rulings
Civil RightsPolicy Brief #194 | By: Rodney A. Maggay | September 16, 2022
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One year after leaving office in January 2022, former President Donald J. Trump and the National Archives and Records Administration (NARA) entered into discussions for the return of fifteen boxes of presidential records that were being kept at the former President’s home in Mar – a – Lago, Florida.
In February 2022, the agency revealed in a letter to the House Committee on Oversight and Reform that classified information was believed to be in the boxes. Communications between the former President and NARA continued throughout the spring to urge Mr. Trump to return the fifteen boxes of documents. The entire set of boxes were not returned and remained at Mr. Trump’s estate.
On August 8, 2022, the Federal Bureau of Investigation (FBI) executed a search warrant at the Mar – a – Lago estate to try and locate the documents and boxes and retrieve them from the premises. The search warrant was issued by U.S. Magistrate Judge Bruce Reinhart who determined that there was probable cause for the search.
Agents who entered the premises went and opened Mr. Trump’s safe because of suspicions that he had stored documents there. Additionally, agents photographed folders marked classified which also showed that the folders were empty. On September 6, 2022 the Washington Post revealed that the reason for the FBI search of Mar – a – Lago was to retrieve documents that included sensitive nuclear weapons information. Days later, it was revealed that documents relating to a foreign government’s nuclear capabilities were among the documents believed to be in Trump’s possession although the identity of the foreign government was not revealed.
On August 12, Judge Reinhart unsealed the search warrant. The warrant revealed possible violations of federal law, including the Espionage Act. On August 26, the affidavit in support of the search warrant was unsealed albeit in a heavily redacted form. On August 22, Trump’s lawyers filed a motion in the Federal District Court for the Southern District of Florida to request a Special Master under Federal Rules of Procedure (FRCP) 53 to review all seized materials for documents that might be covered under either attorney – client or executive privilege.
On September 5, 2022 Judge Aileen Cannon ruled that she would grant Trump’s request for a Special Master. The DOJ objected to the ruling and requested that she stay her ruling. But on September 15, 2022, Judge Cannon agreed to appoint former federal judge Raymond Dearie as Special Master and upheld her September 5 ruling ordering a stop to the use of the seized documents for investigative purposes until the Special Master had reviewed them. LEARN MORE, LEARN MORE
The situation occurring at former President Trump’s Mar – a – Lago estate and resort raises a number of very serious questions. It can be viewed in a number of different ways from the preservation of government documents, the handling of top secret documents and to why highly sensitive nuclear materials were found outside secure government facilities. There are also the legal aspects of the case that offer additional troubling details in addition to the situations listed above.
While the search warrant issued by U.S. Magistrate Judge Bruce Reinhart and executed by the FBI was based on probable cause the case took a darker turn when the case was assigned to Judge Aileen Cannon for a ruling from Trump lawyers and their request for a Special Master under FRCP 53.
That rule provides that a judge may appoint a person to perform duties at the request of the judge and make recommendations as to how to proceed. The problem with their use in this case is that the appointment of a special master in this case has never been done before.
What appears from the ruling issued by Judge Cannon is that she went out of her way, including ignoring legal precedent and misconstruing federal statutes to ensure that President Trump would be able to use a Special Master to review the seized materials. Had the plaintiff been anyone other than President Trump, a court would have likely denied the plaintiff use of a Special Master.
President Trump appears to have gotten a favorable ruling and treatment when no other citizen would have. There is no prior instance of a person who is the focus of a law enforcement investigation being granted a Special Master.
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Additionally, Judge Cannon’s ruling has been highly criticized for poor legal reasoning and interpretations of legal rules and concepts. In the case of privilege the two concepts – attorney – client and executive privilege – simply do not apply to this case.
An attorney – client privilege only applies if Trump had been conferring with an attorney, which seems dubious in this case since we are talking about seized documents and not any conversation the President may have had with a lawyer. And executive privilege cannot apply because, among a number of reasons, the privilege can only be invoked by a sitting President which Mr. Trump is not.
Judge Cannon’s ruling was so poorly written and reasoned that experts questioned whether the Judge understood the concept of executive privilege at all. It was an incredible stretch for the Judge to rule that a Special Master was required to review documents if they fell under a claim of privilege when it was clear that the privilege did not apply.
Lastly, the impact of Judge Cannon’s September 15th ruling deals with the timing of the investigation into the seized documents. Her ruling also barred the intelligence community from using the seized documents in their analysis of the security risk that may have occurred with the exposure of the documents.
In terms of national security, this is unprecedented as the intelligence community needs to determine what harm has developed when the boxes were not returned from Florida. By not allowing the intelligence community to use the documents Judge Cannon has effectively closed off any inquiry into what damage Mr. Trump has caused. This could put the United States at a disadvantage on the international stage.
Maybe not now, but in the future. And, her appointment of retired federal judge Raymond Dearie as Special Master also allows Mr. Trump to delay the case. Instead of proceeding into hearing the merits of the case in the next few weeks, the case is extended until at least November 30th which is the deadline Judge Dearie has to review the documents. This is simply a delaying tactic for Mr. Trump to avoid accountability and inquiry into his questionable handling of sensitive documents.
And with likely appeals on the horizon the case now looks likely to extend into 2023 without an answer as to why classified materials ended up at Trump’s Mar – a – Lago estate. LEARN MORE, LEARN MORE, LEARN MORE
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact firstname.lastname@example.org.
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Lawfare – in depth analysis and criticisms of Judge Cannon’s September 5, 2022 ruling.
Washington Post Special Report – exclusive report on search for classified nuclear materials at Mar – a – Lago.