Donald J. Trump v. United States, No. 22-81294 (MAC). Order entered September 5, 2022.
Citing the need “to ensure at least the appearance of fairness and integrity,” the federal judge assigned to hear former President Trump’s request for appointment of a Special Master to review materials seized pursuant to an unannounced search of his Florida residence, Mar-a-Lago has granted that request.
Having concluded that the circumstances warrant the exercise of the court’s equitable jurisdiction and supervisory powers, the court examined the equitable considerations supporting or negating the propriety of the appointment of a Special Master.
The court rejected the government’s argument that the former president could not seek relief because in the government’s view the former president does not own the materials seized. Not only is this not wholly true, the court observed, but property ownership is no precondition to assertion of Fourth Amendment interests.
The idea that the former president cannot challenge the search fails, in the court’s view, because the issue before the court is not standing on the merits of any claim, but standing to seek equitable relief in the form of a special master, which the court has found to be present.
The argument that there exists concern only for materials subject to the attorney client privilege but not the executive privilege also fails, the court found, as the government’s assertion that the executive privilege is lost the moment a president vacates the office lacks support in the law.
The court rejected the notion that the work of a government privilege review team obviates the need for a special master. While adequate in some cases, the court observed, this is not an ordinary case, and to the extent that there have been instances of some materials not being cabined by the government privilege review team, even if inadvertent, highlights the need for independent review.
The court has elicited suggestions for appointees to act as Special Master to be filed by the parties by September 9, 2022.
The government has been ordered not to make use of any of the seized materials under review by the Special Master in any criminal investigation at least during the conduct of the Special Master’s review. The government may continue its classification and national security review.