The ruling alsThe ruling also effectively barred federal prosecutors from using key pieces of evidence as they continue to investigate whether Mr. Trump illegally retained national defense documents at his estate.o effect
A federal judge intervened on Monday in the investigation of former President Donald J. Trump’s handling of sensitive government records, ordering the appointment of an independent arbiter to review a trove of materials seized last month from Mr. Trump’s private club and residence in Florida.
The judge, Aileen M. Cannon of the Federal District Court for the Southern District of Florida, also temporarily barred the Justice Department from using the seized materials for any “investigative purpose” connected to its inquiry of Mr. Trump until the work of the arbiter, known as a special master, was completed.
The order would prevent, at least for now, federal prosecutors from using key pieces of evidence as they continue to investigate whether the former president illegally retained national defense documents at his estate, Mar-a-Lago, or obstructed the government’s repeated efforts to get them back.
While the order may ultimately serve only to delay the criminal inquiry into Mr. Trump, the scope and candor of Judge Cannon’s language and reasoning pointed to broader themes. Her ruling seemed to carve out a special exception to the normal legal process for the former president and reject the Justice Department’s implicit argument that Mr. Trump be treated like any other investigative subject.
Indeed, in her order, issued on the Labor Day holiday, Judge Cannon said she had made her decisions “to ensure at least the appearance of fairness and integrity under the extraordinary circumstances.” Her order would not, however, affect a separate review of the documents by the Office of the Director of National Intelligence seeking to determine what risk to national security their removal to Mar-a-Lago may have caused.
Justice Department officials last week had discussed the possibility of an appeal if the judge ruled in Mr. Trump’s favor, but a department spokesman, Anthony Coley, demurred on Monday when asked how it would respond.
“The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation,” he said.
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Any appeal of Judge Cannon’s ruling would be heard by a three-judge panel from the United States Court of Appeals for the 11th Circuit in Atlanta. Of its 11 active judges, six were appointed by Mr. Trump.
Judge Cannon, who was appointed by Mr. Trump in 2020, granted the special master wide-ranging authority to review the more than 11,000 documents carted away from Mar-a-Lago by the F.B.I. on Aug. 8, some of which bore markings labeling them as highly classified. Her ruling permitted whoever is appointed to the job to evaluate the documents not only for those protected by attorney-client privilege, a relatively common measure, but also for those potentially shielded by executive privilege, which typically protects confidential internal executive branch deliberations.
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After trying for months to get the documents back from Mr. Trump, the National Archives, the agency that safeguards presidential records, told his lawyers in a letter in May that both the Justice Department and the Biden White House did not believe the former president’s executive privilege claims had merit.
“The question in this case is not a close one,” the archives wrote.
At a hearing last week concerning the question, the Justice Department argued that allowing a special master to conduct an executive privilege review of the seized material would be “unprecedented” and legally baseless since the department itself is part of the current executive branch and Mr. Trump is no longer in office.
“There is no role for a special master to play in executive privilege,” Julie Edelstein, a lawyer for the department, said during the hearing.
But Judge Cannon clearly disagreed with the Justice Department, writing in the order that she was “not convinced” of the government’s categorical assertion that executive privilege did not apply in this context. She added that she thought the department’s position “arguably overstates the law” and that setting aside any documents that could be shielded by executive privilege as the legal issues in the case are sorted out made sense.
“Even if any assertion of executive privilege by plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former president’s ability to raise the privilege as an initial matter,” she wrote.
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In her order, Judge Cannon evinced concern that Mr. Trump might suffer “reputational harm” from a search that was not conducted properly — or, as she added, from “a future indictment” that was based even in part on “property that ought to be returned.”
After trying for months to get the documents back from Mr. Trump, the National Archives, the agency that safeguards presidential records, told his lawyers in a letter in May that both the Justice Department and the Biden White House did not believe the former president’s executive privilege claims had merit.
“The question in this case is not a close one,” the archives wrote.
At a hearing last week concerning the question, the Justice Department argued that allowing a special master to conduct an executive privilege review of the seized material would be “unprecedented” and legally baseless since the department itself is part of the current executive branch and Mr. Trump is no longer in office.
“There is no role for a special master to play in executive privilege,” Julie Edelstein, a lawyer for the department, said during the hearing.
But Judge Cannon clearly disagreed with the Justice Department, writing in the order that she was “not convinced” of the government’s categorical assertion that executive privilege did not apply in this context. She added that she thought the department’s position “arguably overstates the law” and that setting aside any documents that could be shielded by executive privilege as the legal issues in the case are sorted out made sense.
“Even if any assertion of executive privilege by plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former president’s ability to raise the privilege as an initial matter,” she wrote.
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In her order, Judge Cannon evinced concern that Mr. Trump might suffer “reputational harm” from a search that was not conducted properly — or, as she added, from “a future indictment” that was based even in part on “property that ought to be returned.”
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