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Judge bails Trump out of special master plan that would have forced uncomfortable submissions in court

<i>Gaelen Morse/Reuters</i><br/>Former President Donald Trump
REUTERS
Gaelen Morse/Reuters
Former President Donald Trump

By Tierney Sneed and Katelyn Polantz, CNN

Former President Donald Trump got another boost in his bid to challenge the FBI search of his Florida home, with US District Judge Aileen Cannon reshaping the plan put forward by the special master she appointed to review the materials seized at Mar-a-Lago last month.

Cannon nixed several aspects of the plan proposed by senior Judge Raymond Dearie, who was put forward by Trump for the third-party review, that would have required the former President to make uncomfortable assertions in court, including whether he actually believes the FBI planted evidence at Mar-a-Lago, as he has suggested in public statements.

Dearie has shown himself to be far less sympathetic to Trump’s claims than Cannon, who Trump had nominated in 2020 and was confirmed by the Senate after the November 2020 election.

On Thursday, Cannon also pushed back the timeline for the review by at least a half-month, while making clear that additional litigation that Trump will have the chance to bring, after the special master process is finished, challenging the search will remain on her docket.

It’s unclear what the delay and the other opportunities Trump will have to hamstring the review will mean for the larger Justice Department investigation, which is looking at whether crimes were committed in how documents from the Trump White House were handled.

With the intervention of the 11th US Circuit Court of Appeals earlier this month, the department was allowed to resume the criminal probe’s use of the documents marked as classified, which may well be the heart of the investigation.

Prosecutors have indicated in court filings that understanding how those sensitive government documents were intermixed with other materials at Mar-a-Lago is something they’re closely reviewing.

Trump won’t have to back up claims in court about FBI planting evidence

Cannon on Thursday rejected part of the special master’s plan that would have forced the former President’s legal team to back up his out-of-court claims that the FBI planted evidence.

“There shall be no separate requirement on Plaintiff at this stage, prior to the review of any of the Seized Materials, to lodge ex ante final objections to the accuracy of Defendant’s Inventory, its descriptions, or its contents,” Cannon wrote, noting that her order appointing a special master contemplated only the government filing a declaration verifying the accuracy of the inventory.

“Should any additional matters surface during the Special Master’s review process that require reconsideration of the Inventory or the need to object to its contents, the parties shall make those matters known to the Special Master for appropriate resolution and recommendation to this Court,” Cannon said.

Trump had pushed back against the requested declaration, while the Justice Department had indicated it supported the requirement.

Dearie’s plan on executive privilege claims is altered

In another boost for Trump, Cannon said Trump’s legal team does not have to provide certain details about his executive privilege claims in the special master review.

The federal judge removed the special master’s proposed requirement that Trump, when asserting a document is covered by executive privilege, specify whether he believed that barred disclosure within the executive branch versus disclosure outside of it.

The Justice Department has argued that Trump’s executive privilege claims are especially weak because the materials were seized by the executive branch for an executive branch purpose, i.e. a DOJ criminal investigation.

Dearie had proposed that Trump log seized items in categories more specific than what Cannon’s order appointing the special master had laid out.

Trump objected to making the executive privilege distinction Dearie proposed. Cannon adopted other aspects of Dearie’s plan for how the documents should be categorized.

In explaining the “modest enlargement” of the timeline, Cannon pointed to the issues the parties had faced in securing a vendor to digitize the seized materials for the review.

Earlier this week, the department said in a court filing that Trump’s team had indicated the data hosting companies didn’t want to work with the former President. Trump’s team now says the issue is the size of the evidence collection.

“In conversations between Plaintiff’s counsel and the Government regarding a data vendor, the Government mentioned that the 11,000 documents contain closer to 200,000 pages. That estimated volume, with a need to operate under the accelerated timeframes supported by the Government, is the reason why so many of the Government’s selected vendors have declined the potential engagement,” Trump’s team wrote on Wednesday.

Cannon referenced the characterization of the 200,000 pages in ordering the postponed deadlines. She also nixed the idea of the special master reviewing privilege assertions in tranches.
The judge additionally made clear that any motions from Trump to seek the return of property he contends was unlawfully seized would be considered on her docket. Dearie, had opened the door to that litigation happening before Magistrate Judge Bruce Reinhart, who approved the search warrant — a move that Trump opposed.

This story has been updated with additional developments Thursday.

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