DOJ, Trump team clash over candidates for special master
WASHINGTON — The Justice Department and lawyers for former President Donald Trump failed to agree on who could serve as an independent arbiter to sift through documents the FBI seized from Trump’s Florida club and residence last month.
In an eight-page joint filing late Friday that listed far more points of disagreement than of consensus, the two sides exhibited sharply divergent visions for what the special master would do and put forth different candidates.
The Justice Department proposed two former U.S. District Court judges: Barbara Jones, a Clinton appointee to the Southern District of New York who performed a similar role in cases involving two personal lawyers for Trump, Michael Cohen in 2017 and Rudy Giuliani in 2021; and Thomas Griffith, a George W. Bush appointee who retired from the U.S. Court of Appeals for the District of Columbia Circuit in 2020.
Trump’s legal team countered with a retired U.S. District Court judge, Raymond Dearie, a Reagan appointee who sat in the Eastern District of New York and once served as the top federal prosecutor there; and Paul Huck Jr., a former deputy attorney general in Florida who also served as general counsel to Charlie Crist, who was its Republican governor at the time.
Huck is married to Judge Barbara Lagoa, whom Trump appointed to the Atlanta-based 11th U.S. Circuit Court of Appeals, which oversees federal courts in Florida. Such an appointment would appear to create a conflict of interest that could require Lagoa to recuse herself from litigation involving the case.
Judge Aileen Cannon, who ordered the parties to produce a list of qualified candidates, will ultimately decide who will be tapped for the job and will set the parameters of the review.
The DOJ proposed an Oct. 17 deadline for completion of the arbiter’s work; Trump’s team suggested taking 90 days.
The department also said Trump should pay for the master since he had asked for it; Trump’s team proposed that taxpayers split the cost.
The two sides also clashed substantially over the special master’s duties. Trump’s lawyers argued that the arbiter should look at all the documents seized in the search and filter out anything potentially subject to attorney-client or executive privilege.
By contrast, the government argued that the master should look only at unclassified documents and should not adjudicate whether anything was subject to executive privilege.
Trump’s lawyers are also asking the court to exclude National Archives officials from the process of reviewing the materials; the DOJ believes their involvement is essential.
The dispute over the special master’s purview was reflected in an appeal the Justice Department filed Thursday seeking to lift part of Cannon’s order temporarily barring it from using the documents in its investigation.
The department asked an appeals court to overturn the portion of that order that applied to about 100 documents marked as classified, and asked Cannon to hold off on enforcing that part as the appeal unfolded. If she did, the investigation could resume using only those documents.
Cannon has not yet decided whether to comply with the government’s request.
The Office of the Director of National Intelligence, which is conducting those national security reviews, said Friday that a classification review and an assessment of the potential risks to national security caused by the insecure storage of documents at Mar-a-Lago, Trump’s residence in Palm Beach, Florida, had been “temporarily paused” after consultation with the DOJ.
While Trump and his allies have repeatedly claimed that the former president had a standing order to declassify all materials he took from the White House, his lawyers have not made that assertion in court. In fact, they have said that any special master in the case would need a high-level security clearance.
But Trump’s lawyers have gestured toward his claim of declassification by declining to concede that the documents were classified. They did so again in Friday’s filing, writing that the Justice Department had wrongly assumed “that if a document has a classification marking, it remains classified in perpetuity.”
The dispute over the special master was the latest twist in the criminal investigation into Trump’s hoarding of government documents — including some marked as highly classified — and his refusal to return them.