Fox News is reporting that the FBI seized boxes containing attorney-client privileged and potentially executive privileged material during its raid Mar-a-Lago. When the raid occurred, I noted that the legal team had likely marked material as privileged at the residence and that the collection could create an immediate conflict over such material. Now, sources are telling Fox that the Justice Department not only took attorney-client material but has refused Trump requests for a special master to review the records.
The request for a special master would seem reasonable, particularly given the sweeping language used in the warrant. It is hard to see what material could not be gathered under this warrant.
Attachment B of the warrant has this provision:
“Any physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes; b.. Information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material”
Thus, the agents could not only take an entire box if it contained a single document with classification markings of any kind but could then take all boxes around that box.
It is not surprising that dozens of boxes were seized.
Given that sweeping language (and the various lawsuits and investigations facing Trump), it would seem reasonable to request a special magistrate. That is why the reported refusal is so concerning. What is the harm from such a review? The material is now under lock and key. There is no approaching deadline in court or referenced grand jury.
Moreover, many have accused the Justice Department of using this search as a pretext. While saying that they were seeking potential national security information, critics have alleged that the real purpose was to gather evidence that could be used against Trump in a prosecution over his role in January 6th riot. I have noted that such a pretext would be deeply disturbing given the documented history of Justice Department officials misleading or lying to courts in prior Trump-related investigations. The continuation of such subterfuge could be disclosed in a later oversight investigation.
The use of a special master could have helped quell such claims of a pretextual search. Conversely, the denial of such a protective measure would fuel even greater concerns.
The refusal to take this protective measures is almost as troubling as the sweeping language in the search warrant itself. We need to see the affidavit that led to this search warrant. I am not going to assume that the search was unwarranted until I see that evidence. However, in the interim, Attorney General Merrick Garland could have allowed accommodations for this review to assure not just the Trump team but the public that the search was not a pretext for seeking other evidence like January 6th-related material.