A Brooklyn-based federal judge was selected Thursday to serve as an independent arbitrator to review materials seized during the FBI’s search of former President Donald Trump’s Florida home.
The special master will be senior judge Raymond Dearie, who was suggested as a possible candidate for the special role by Trump, who had sued to get the review. The Department of Justice also approved Dearie’s appointment.
U.S. District Judge Elaine Cannon also rejected the Justice Department’s bid to continue its criminal investigation into classified documents seized at Mar-a-Lago last month. The refusal sets the stage for the department’s spat with Trump over the investigation to move quickly to an appeals court and possibly the US Supreme Court.
The intelligence community’s review of the documents has been on hold since last week, when Cannon ordered the criminal investigation halted for the time being. The DOJ says the two assessments cannot be separated and plans to appeal.
The rejection of the government’s request was the latest example of Cannon, proposed by Trump in 2020, showing extreme skepticism about the Justice Department’s handling of records it says should be in the government’s hands because it owns them.
Cannon gave the special master until Nov. 30 to complete his review of the potentially privileged documents.
The schedule delays the conclusion of the review until after the midterm congressional elections — essentially guaranteeing that the Mar-a-Lago investigation will move slowly for the next two months unless a higher court intervenes. The appeals process could mean the fight for the documents will continue into the 2024 presidential election cycle.
Dearie sits on the district court for the Eastern District of Brooklyn, where he has taken a senior position — meaning his workload has lightened considerably as he nears the end of his time on the federal bench.
Appointed by Ronald Reagan in 1986, he was for a time the Chief Judge of the District Court in Brooklyn. He also served a seven-year term, which ended in 2019, on the US Foreign Intelligence Surveillance Court.
In his role as a FISA judge, Dearie was one of the judges who approved one of the Justice Department’s requests to monitor former Trump campaign foreign policy adviser Carter Page as part of the federal investigation into Russia’s election meddling in 2016.
The department’s process for securing the FISA warrants for Page was riddled with errors and sloppiness, a DOJ review later found. The IG’s review highlighted omissions and errors in the FBI’s court filings supporting the FISA applications, including the filings submitted to Dearie.
Trump has questioned how the FISA warrants against Page were obtained, making a point of recommending that Dearie reconsider the Mar-a-Lago search. Legal observers across the ideological spectrum, including staunch Trump critics, also supported the choice.
Cannon on Thursday also rejected several other requests made by the Justice Department about how the special master review should proceed. He pushed back on the Justice Department’s argument about national security risks that would arise from stopping the criminal investigation into classified documents — in a break with how judges typically view such claims by the government.
But it also seemed to create a vague and unspecified loophole for the Justice Department to take some steps in the criminal investigation if those steps were necessary and integral to the assessment that the national security intelligence community was at risk from disclosure of the documents.
Beyond that potential leeway, her order — if left intact by the higher courts — will slow down the criminal investigation by at least several weeks.
In her ruling, Cannon said she was not convinced that stopping the criminal investigation from reviewing the documents would cause irreparable harm.
The department argued that the intelligence community’s assessment of national security risks — which Cannon previously said could proceed — was being hindered by the suspension of the documents’ use by the criminal investigation.
“First, there has been no actual suggestion by the government of any cognizable emergency or imminent disclosure of classified information arising from Plaintiff’s alleged unlawful retention of the seized property. Instead, and unfortunately, unwarranted revelations floating in the background are leaked to the media after the underlying seizure,” he wrote.
It also rejected the department’s argument that the intelligence community’s assessment could not be disconnected from the criminal investigation.
While it might be “easier,” Cannon said, “to move the government’s criminal investigative work along with the Security Assessments,” the Justice Department had not convinced her that the intelligence community’s assessment was hindered by it.
Pointing to examples prosecutors had offered of how the national security assessment would be based on criminal investigative work, Cannon said prosecutors “do not strongly argue that the procedures described are inextricably linked and instead rely heavily on hypothetical scenarios and generalizations explanations that do not demonstrate irreparable harm.”
However, while rejecting the department’s claims that the two reviews were inseparable, it appeared to concede that there were situations in which the intelligence community’s assessment might be based on investigative activity occurring in the context of a criminal investigation, and vaguely appeared to give the Justice Department motivation margin to take these steps.
Cannon wrote that “to the extent that Security Assessments are, in fact, integral to the criminal investigative use of seized materials, the Court makes clear that the Order does not compel the Government to take the necessary steps for the Security Assessment.”
He did not specify what kind of criminal activity would be acceptable for that purpose, saying only in a footnote that he would leave it up to the government to decide when the tasks of intelligence review and criminal investigation were truly “unresolvable.”
Rejecting a Justice Department request that the special master screening be completed by mid-October, Cannon set a Nov. 30 deadline for the process — putting it on schedule closer to the 90 days the Trump team had proposed to allow for the review.
Cannon also allows Trump’s lawyers to review — in a highly controlled environment — documents marked classified. The Justice Department wanted those documents to be excluded from the special master proceeding altogether. In another rejection to the DOJ, the judge also orders the special master to review all the seized documents.
However, the judge sided with the Justice Department on how the special master is compensated, ordering Trump to pay the costs, rather than splitting it 50-50 with the Justice Department, as Trump had suggested.
Trump filed suit seeking the special master two weeks after the Justice Department conducted a search of his Florida home and resort. Prosecutors are investigating at least three possible crimes: violations of the Espionage Act, tampering with government records and obstruction of justice.
During the investigation, according to court records, investigators seized more than 100 documents marked as classified, which were obtained after Trump’s representatives subpoenaed them in May, demanding that all of those documents be returned to the government. When the FBI traveled to Mar-a-Lago in June to collect the documents, one of its lawyers signed an affidavit that the subpoena had been complied with.
Trump, in his depositions in the special case, argued that his constitutional rights had been violated by the Aug. 8 search, although Cannon herself had previously said she did not agree that the court-authorized search amounted to “frank contempt” of rights of the former President.
According to her Sept. 5 order, which initially granted Trump’s request for a special master review, Cannon decided it was necessary to bolster public confidence in the investigation and because Trump, as a former president, faced increased risks of harm of his reputation if he is wrongfully indicted. against him.
Trump argued on Hugh Hewitt’s radio show Thursday that he declassified the government records moved to Mar-a-Lago, but that’s not an argument he’s making in any legal context.
Cannon’s order on Thursday also raised doubts that all documents marked classified were actually classified.
“The Court does not see fit to accept the government’s conclusions on these important and contentious issues without further review by a neutral third party in an expeditious and orderly manner,” she said, referring to the Justice Department’s claims that the documents are possibly classified and that the Trump could not possibly have an ownership interest in any of them.
This story has been updated with additional details.
