September 30, 2022

Mar-a-Lago: Special counsel appointed to oversee classified document review as judge rejects DOJ’s request to reopen criminal investigation


A Brooklyn-based federal judge was selected Thursday to serve as an independent arbitrator to review items seized in the FBI’s search of former President Donald Trump’s Florida home.

The Special Master will be the Senior Judge Raymond Deary, who was floated by Trump as a possible candidate for the special master role, sued the court to seek a review. The Judiciary also approved Deary’s appointment.

U.S. District Judge Aileen Cannon also rejected the Justice Department’s bid to reopen a criminal investigation into classified documents seized at Mar-a-Lago last month. The denial sets the stage for the department’s dispute with Trump in its quest to quickly move to an appeals court and potentially the U.S. Supreme Court.

An Intelligence Community review of the documents was suspended last week after Cannon ordered a temporary halt to the criminal investigation. The DOJ says the two reviews are inseparable and plans to appeal.

Cannon gave the special master a Nov. 30 deadline to review the privileged documents. The review’s schedule for completion after the midterm congressional elections guarantees the Mar-a-Lago trial will move slowly for the next two months, unless the high court steps in.

Deary sits on the District Court for the Eastern District of Brooklyn, where he has seniority status — meaning his workload has been significantly reduced as he approaches his time on the federal bench.

He was appointed to the bench by Ronald Reagan in 1986 and served as presiding judge of the Brooklyn-based district court. He served seven years, ending in 2019 on the US Foreign Intelligence Surveillance Court.

In his role as a FISA judge, Deary was one of the judges to approve 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 2016 election meddling.

The department’s process for securing FISA warrants for Page was riddled with errors and laxity, a DOJ inspector general review later found. The IG’s review pointed to flaws and inaccuracies in the FBI’s court filings supporting the FISA applications.

Trump has railed against how the FISA warrants against Page were obtained, and Dearie has made his recommendation to reconsider the Mar-a-Lago search. Legal observers across the ideological spectrum, including Trump critics, supported the choice.

In his ruling rejecting the Justice Department’s bid to reopen the criminal investigation, Cannon said he did not believe suspending the criminal investigation’s review of the documents would cause irreparable harm.

The department argued that the intelligence community’s assessment of national security risks — which Cannon previously said could go ahead — was hindered by his hold on the use of documents from criminal investigations.

“First, there is no real suggestion by the government of an immediate disclosure of confidential information arising out of a cognizable emergency or plaintiff’s possession of illegally seized property. Instead, unfortunately, unnecessary disclosures float in the background and are leaked to the media after the basic seizure,” he wrote.

He also rejected the department’s argument that the intelligence community’s assessment cannot be separated from the criminal investigation.

While Cannon said it would “make it easier” for the government’s criminal investigations to “work together with security assessments,” the Justice Department doesn’t believe her that it hampers the intelligence community’s assessment.

Pointing to examples provided by prosecutors of how the national security assessment could rely on the work of a criminal investigation, Cannon said prosecutors “do not assert that the processes described are inextricably intertwined, but instead rely heavily on hypothetical scenarios and general explanations. Do not cause irreparable injury.

Trump filed the suit seeking a special master two weeks after the Department of Justice raided his Florida home and resort. Prosecutors are investigating at least three potential crimes: violations of the Espionage Act, illegal manipulation of government records and obstruction of justice.

During the search, according to court filings, investigators seized more than 100 documents marked classified that were obtained after Trump’s representatives requested their return to the government in May. When the FBI went to Mar-a-Lago in June to collect the documents, one of his lawyers signed an affidavit confirming that the subpoena had been served.

Trump argued in a special master’s filing that the Aug. 8 search trampled on the teenager’s constitutional rights, but Cannon had previously said the judicially-authorized search was “grossly negligent.” Rights of the former President.

According to his Sept. 5 order, which initially granted Trump’s request for a special primary review, Cannon concluded that it was necessary to bolster public confidence in the search, and that Trump, as a former president, Faced with reputational risks If a charge is falsely brought against him.

Trump said On Hugh Hewitt’s radio show Thursday he declassified the government records he took to Mar-a-Lago, but that wasn’t an argument he made in any legal setting.

Cannon’s order on Thursday raised doubts about whether all documents with classification marks were actually classified.

“It is not appropriate for the court to accept the government’s decisions on these important and controversial issues without prompt and orderly review by a neutral third party,” he said, referring to the Justice Department’s claims that the documents were implicitly classified. And Trump can’t have a choice of his own in any of them.

This story has been updated with additional details.