October 6, 2022

DOJ Admits ‘Limited Set’ Associated with Seized Trump Docs Might be Privileged

DOJ’s admission of lawbreaking comes as federal determine announces appointment of exclusive master to determine which files are privileged.

The DOJ told a judge upon Monday that a “ limited set” of materials seized in the Mar-a-Lago raid might be covered by attorney-client privilege, following the former president sought the appointment of a so-called unique master to review the paperwork seized on Aug. 8.

According to the filing, the particular DOJ’s privilege review team “ identified a limited set of materials that potentially contain attorney-client privileged information, finished its review of those materials, and is in the process of adopting the procedures set forth in paragraph 84 of the search warrant affidavit to address potential freedom disputes, if any. ”

As  Jonathan Turley via jonathanturley. org   notes:

Below is my column in the Hill on the discharge of the affidavit leading to the raid on Mar-a-Lago.   The redacted affidavit did confirm key points, but the most interesting elements could be exactly what did not happen.   That may change now that analysis judge has finally pointed out that a  exclusive master may be appointed . Since the start of the controversy over the Mar-a-Lago raid,   I have called for the release of the redacted affidavit and the visit of a special master to sort through the seized materia l, including supposed attorney-client privileged material. This kind of appointment could result in additional material being returned to the Trump team and a release associated with additional information on what was seized under this exceptionally wide warrant.

This can be a column:

Along with Friday’s release of the redacted affidavit from the FBI’s search of Mar-a-Lago, the largest Rorschach test in history seemed to enjoy out on cable television.   Instead of ink blots, pundits and politicians stared with pages of solid black lines and offered specifically different “ ah-ha” findings.   Several called   the matter effectively closed and that, using the redacted affidavit, we have now “ finally seen enough. Jesse Trump will be indicted by a federal grand jury. ”

Likewise, for former Mueller top aide Andrew Weissmann ,   the affidavit meant one thing — that “ the former president is going to be prosecuted. ”   (Of course, Weissmann as soon as expressed certainty that  Donald Trump would excuse himself   by his last day in office. )

There already are a plethora of news and opinion columns concentrating on  the five  details we learned from the redacted affidavit. Equally telling, nevertheless , is what did not happen with the affidavit’s release.

Due to a  series of advance leaks from the federal government , we already understood some of the affidavit’s contents and the results of the search. The redacted affidavit did confirm important details on past communications and the documents that were formerly retrieved from Mar-a-Lago, such as the discovery of a large amount of classified documents, from the relatively routine “ confidential” to the extremely classified “ Top Secret/Sensitive Compartmented Information” (TS/SCI).

It also has been clear that a criminal situation could be brought on such accusations,   though there is certainly considerable factual and lawful uncertainty about any confidence or appeal.

Not clear is whether the Proper rights Department intends to prosecute the former president.   It is entirely possible that beneath the affidavit’s blacked-out lines lurks evidence that the government is building a case for prosecution . However , if one would be to go by the unredacted portions, it is  also  achievable this was just a heavy-handed work to retrieve government material from Mar-a-Lago.

More striking are  three  things that did not occur.

The  most remarkable thing  that will occurred on Friday is the fact that nothing occurred on Friday. Only a week before, the Justice Department insisted which the court should not release a single line of the affidavit which any substantive disclosure might unleash  a  parade of horribles, from damaging national security to sacrificing witnesses.

For those of us who have litigated cases contrary to the Justice Department, it was an all-too-familiar claim by a section notorious for over-classification plus over-redaction arguments.

For a week, media pundits mouthed the same exaggerated states and challenged those of us who  argued that it was obviously possible to release a redacted affidavit ; liberals suddenly shuddered at the thought of doubting the Justice Department. Sites like  Above legislation   claimed that calls for greater transparency and also a redacted affidavit were akin to “ publishing the nuclear codes on the back of each milk carton. ” Even with the judge agreed that the redacted affidavit could be released in the public interest,   experts balked   at the notion as dangerous in light of Justice’s earlier warnings.

As I  noted earlier , affidavits include background legal and factual sections that ordinarily could be unsealed without disclosing delicate information. That is precisely what occurred here. Pages of the affidavit were released that verified the legal claims along with some of the factual allegations. Quite simply, the Justice Department misconstrued the contents of the affidavit and the dangers of redaction. As in other cases, this falsely claimed that no disclosures could be made with out redacting so much as to associated with document unintelligible. Yet, no one seemed to notice.

Something else did not happen. In rejecting Justice’s claims that will nothing in the affidavit must be released,   U. S. Magistrate Bruce Reinhart set out an appellate procedure by which he could overrule Justice in ordering disclosures above those proposed by the department.   Given Justice’s well-documented history of over-redacting, it had been a promising start.

Then, over the course of the week, media reported a series of leaks of information that clearly had been part of the affidavit. At the same time which the government was demanding total secrecy, it was selectively leaking details seemingly designed to put Trump on the defensive.

Given that history, there is every reason for the court to be skeptical of the first cut of the redactions. Yet the court accepted the government’s redactions without question. This effectively found that the Justice Department hit the Goldilocks spot on the first try within getting the redactions just right to maximize disclosures.

This is where those black lines actually may tell us some thing .   While there were key points disclosed, the redactions of the timeline of occasions notably ended exactly where the particular leaked information ended. Many of us had stated that the  critical  period of interest has been between June 8 after the raid on August 8.   The June date involved a demand for greater security on the storage room at Mar-a-Lago, with which the Trump team complied. The redacted affidavit only added one day of new information in noting that on June 9, Trump’s counsel acknowledged the invoice of their letter. Then the black-out followed.   That will information could explain the reason why a raid was needed, as opposed to a second subpoena or perhaps a more tailored warrant.

There is every reason to believe that exactly what followed contained some information that could be released on the FBI’s communications with the Trump team or the breakdown of such communications. After all, the Trump team already knows about that will. Yet the government is saying that everything which occurred for the reason that critical month cannot be revealed in even the smallest details.

The courtroom could have pushed for additional disclosures but chose to call it a day, based on government representations that more would cause harm. Yet, this is the same department which maintained that all of the pages released this week could hardly be released without leading to harm.

There is certainly still more that can be done by court. One option is the special master requested, belatedly, by Trump’s team.   formerly argued   that will Attorney General Merrick Garland should have proposed such an visit to assure the public that this was not a pretextual search making use of sensitive documents as an reason for a massive seizure . The scope of the bring about was ridiculously broad, allowing the seizure of just about any document in the storage room and every document generated throughout Trump’s presidency.   A special master could have sorted via this mass of material and separated privileged or even immaterial documents. That would increase the legitimacy of an otherwise unlimited search.

That also did not happen.   However , a  special master could still serve the same interests of transparency and legitimacy. By dividing these types of documents into classified material, unclassified but defense-related info, and unclassified material, we might have a better understanding of scope and seriousness of any kind of alleged crimes.

That is why the most curious thing about the redacted affidavit is what did not happen.   In Sir Arthur Conan Doyle’s “ Gold Blaze, ” a law enforcement inspector asks Sherlock Holmes in the event that anything about a crime picture bothered him. The amazing detective responds, “ To the curious incident of the canine in the nighttime. ” Once the confused inspector objects that will “ the dog did nothing in the night-time, ” Holmes replies: “ That was the curious incident. ”

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