A federal judge has appointed Raymond J. Dearie, a former chief federal judge in New York, to sort through the more than 11,000 documents — including classified materials — that FBI agents seized from former president Donald Trump’s Florida residence last month, to see if any should be shielded from criminal investigators because of attorney-client or executive privileges.
The decision could significantly slow a high-profile investigation of the former president, one which prosecutors say has already been paused at a key juncture by the judge’s skepticism that the Justice Department has acted fairly in investigating Trump.
Trump’s legal team proposed Dearie as a candidate to be the special master in the high-profile case, and the Justice Department agreed with the selection last week. But the two sides still disagree on whether searching through the highly sensitive classified documents should be part of the special master’s responsibilities.
Ultimately, U.S. District Court Judge Aileen Cannon ruled in Trump’s favor and said the special master should examine the classified documents, though she said Dearie should prioritize those materials. She denied a bid by prosecutors to allow them to use the seized material in their ongoing criminal investigation before Dearie conducts his review.
In her Thursday night ruling, Cannon rejected Justice Department arguments that her decision to prohibit investigators from using the seized information while the special master conducts his review will cause serious harm to the national security investigation.
Even-handed application of legal rules “does not demand unquestioning trust in the determinations of the Department of Justice,” Cannon wrote in a decision that is almost certainly to be appealed by the government.
Cannon, a Trump appointee confirmed by the U.S. Senate just days after Trump lost his bid for reelection, added that she still “firmly” believes that the appointment of a special master, and a temporary injunction against the Justice Department using the documents, is in keeping “with the need to ensure at least the appearance of fairness and integrity under unprecedented circumstances.”
Prosecutors had previously signaled that if Cannon did not amend her restrictions on the criminal investigation of Trump and his aides for possibly mishandling national defense information, or hiding or destroying government records, they would file an appeal. Prosecutors had also asked that any special master review not include the roughly 100 classified documents the FBI found among the confiscated materials when it executed a court-approved search warrant on Aug. 8. The government said that delaying investigators’ access to those documents could pose national security risks.
In asking the judge to walk back at least part of her special master ruling, prosecutors had argued that Trump could not possibly have an attorney-client or executive privilege claim over classified documents, which by definition are the property of the federal government.
Cannon roundly rejected those arguments in her filing, saying that whether the documents marked classified were actually classified is a matter of dispute. Trump’s lawyers have suggested the documents may not be classified, but have not asserted in their court appearances or court filings that Trump declassified them.
The judge said she did not necessarily believe the prosecutors, writing, “The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.”
Dearie, 78, was nominated to the federal bench in Brooklyn by President Ronald Reagan after serving as U.S. Attorney in the same district. Fellow lawyers and colleagues describe him as an exemplary jurist who is well suited to the job of special master, having previously served on the Foreign Intelligence Surveillance Court, which oversees sensitive national security cases.
Patrick Cotter, who served as a federal prosecutor in Brooklyn, said he was surprised Trump’s team suggested such a smart, low-key judge.
“There wasn’t much personality, and I mean that as a compliment. Ray wasn’t chummy, and he wasn’t a good ol’ Brooklyn boy or high-falutin’ guy trying to impress you,” Cotter said. “He was a very matter-of-fact, down to earth judge with a minimum of pomposity. He will do a credible job, and will do it quickly.”
This is a developing story. It will be updated.