A federal district court judge who was nominated by former President Donald Trump has granted his request to appoint a special master to review documents seized from Trump’s Mar-a-Lago estate by the FBI last month.
FBI agents executed a search warrant at Trump’s Florida home and seized materials 18 documents marked as top secret, 54 marked as secret, 31 marked as confidential and 11,179 government documents or photographs without classification markings.
The decision by U.S. District Judge Aileen Cannon came despite the objections of the Justice Department, which said an outside legal expert was unnecessary because officials had already completed their review of potentially privileged documents.
The decision was widely criticized, including by legal scholars from across the political spectrum, a Bush Administration Homeland Security official, and former prosecutors.
The judge had signaled her inclination to approve a special master, asking a department lawyer during arguments, “What is the harm?”
Cannon temporarily halted the Justice Department’s use of the records for investigative purposes, so the maneuver is likely to slow the pace of the investigation into the presence of top-secret information at Mar-a-Lago.
Given the judge’s directive that the Justice Department may not use any of the seized materials for investigative purposes, it is not clear that the temporary order will have any significant effect on any decisions or the ultimate outcome of the criminal probe.
The FBI’s search of Trump’s Florida residence last month turned up 48 empty folders marked as containing classified information, raising the question of whether the government had fully recovered the documents or if any remain missing.
The detailed list of items retrieved in the search was unsealed as part of the court fight over whether to appoint an independent arbiter to review the materials taken by federal agents when they descended Aug. 8 on Mar-a-Lago.
Along with the empty folders with classified markings, the FBI discovered 40 more empty folders that said they contained sensitive documents the user should “return to staff secretary/military aide,” according to the inventory.
It also said that agents found seven documents marked as “top secret” in Trump’s office and 11 more in a storage room.
The list and an accompanying court filing from the Justice Department did not say whether all the contents of the folders had been recovered. But the filing noted that the inquiry into Trump’s handling of the documents remained “an active criminal investigation.”
Meanwhile, in his sharpest critique of his former boss, former Attorney General William Barr said there is no reason classified documents should have been inside Trump’s personal residence after he was no longer president.
The inventory also sheds further light on how documents marked as classified were stored haphazardly, mixed with everyday items.
Among the items found in one box: 30 news clippings dated from 2008-19, three articles of clothing or “gift items,” one book, 11 government documents marked as confidential, 21 marked as secret and 255 government documents or photographs with no classification markings.
The inventory listed seven batches of materials taken by the FBI from Trump’s personal office at Mar-a-Lago that contained government-owned documents and photographs, some marked with classification levels up to “top secret” and some that were not marked as classified.
The list also included batches of government records that had been in 26 boxes or containers in a storage room at the compound.
The Presidential Records Act of 1978 changed the legal ownership of official White House documents from private to public and it mandated the preservation of all presidential and vice-presidential records.
The law was enacted in 1978 after President Richard Nixon sought to destroy records relating to his presidential tenure upon his resignation in 1974.
The law superseded a policy that considered a president’s records as private property, making it clear that they are owned by the public.
It requires the President to ensure the preservation of records documenting the performance of his official duties, provides for the National Archives and Records Administration (NARA) to take custody and control of the records, and sets forth a schedule of staged public access to such records.
Records covered by the PRA encompass documentary materials relating to the political activities of the President or his staff if they concern or have an effect upon the carrying out of “constitutional, statutory, or other official or ceremonial duties of the President.”