On September 5, 2022, United States District Judge Aileen Cannon, of the Southern District of Florida, issued an Order granting in part former president Donald Trump’s “Motion for Judicial Oversight and Additional Relief.”  In that motion, President Trump asked that the Department of Justice and its affiliated law enforcement agencies be enjoined from reviewing the materials that it seized from President Trump’s Mar-a-Lago residence on August 8, 2022.  President Trump sought the return of those documents pursuant to Federal Rule of Criminal Procedure 41(g), claiming that the material seized contained documents protected by both the attorney-client privilege and the executive privilege.

Before reaching the merits of President Trump’s motion, the Court found that it had jurisdiction to rule on the President’s request under the Court’s broad “equitable jurisdiction.”  The Court also rejected the government’s argument that President Trump lacked standing because the seized property consists of “presidential records” and that, as such, President Trump lacked a possessory interest.  The Court disagreed, finding that President Trump had showed “a right to possess at least some of the seized property.”

Judge Cannon granted President Trump’s request to appoint a special master, who will review the material that was seized in order to determine whether any of the material is protected by either of the cited privileges.  In so ruling, Judge Cannon rejected the government’s argument that President Trump, as a former president, did not have the power to invoke executive privilege.  The Court cited the Supreme Court’s 1977 ruling in Nixon v. Administrator of General Services where, according to Judge Cannon, the Supreme Court “did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters.”

Judge Cannon also granted President Trump’s request to temporarily enjoin the government from using any of the seized materials for investigative purposes, although the Order does permit the government from continuing to review and use the seized materials for purposes of “intelligence classification and national security assessments.”

In opposing President Trump’s motion, the government argued that the appointment of a special master was not necessary because the government was already using a DOJ Privilege Review Team, which was following a previously-approved ex parte filter protocol.  The Court held that this was not enough and questioned the adequacy of the process already in place, citing a Privilege Review Team Report that showed that the Investigative Team had already been exposed to potentially privileged material.  According to Judge Cannon, “[t]hose instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.”

Judge Cannon also focused on the “appearance of fairness,” and held that appointment an independent special master would help towards this goal.  Judge Cannon held that “[c]oncerns about the perception of fair process are heightened where, as here, the Privilege Review Team and the Investigative Team contain members from the same section within the same DOJ division, even if separately for direct reporting purposes on this specific matter.”  Judge Cannon also reminded the government, citing a Fourth Circuit decision, that “[p]rosecutors have a responsibility to not only see that justice is done, but to also ensure that justice appears to be done.”

The parties have until September 9 to file a joint list of proposed special master candidates.