The Justice Department rejected one of the four candidates put out by Donald Trump as not having the necessary expertise, and on Monday listed three retired judges that they would accept as an impartial arbiter in the inquiry into top-secret materials discovered at Mar-a-Lago.
On September 9, Trump’s team submitted its choices for the position of special master, and the Justice Department replied on Monday.
They said that they would consider Raymond J. Dearie, Thomas B. Griffith, or Barbara S. Jones for the position.
The Trump campaign staff suggested using Dearie. The administration has offered two new names, Jones and Griffith.
They said all three retired judges ‘have substantial judicial experience, during which they have presided over federal criminal and civil cases, including federal cases involving national security and privilege concerns’.
A fourth candidate, Paul Huck, was rejected by the Justice Department, with the government saying he ‘does not appear to have similar experience’.
They said their chosen three have suitable staff to assist them with the task.
Raymond J. Dearie
Donald Trump’s Mar-a-Lago club in Palm Beach, Florida
Jones served on the federal bench in Manhattan and has performed the same role in prior high-profile investigations. She reviewed materials seized in FBI raids on Trump’s one-time personal lawyers Michael Cohen, in an investigation related to hush-money payments, and Rudy Giuliani, in a probe of his dealings in Ukraine.
Griffith was a federal appeals court jurist in the District of Columbia. He was named to the federal appeals court in Washington in 2005 by then-president George W Bush, and previously represented the institutional interests of the Republican-led Senate during the impeachment case of former president Bill Clinton.
Dearie was the former top federal prosecutor in the Eastern District of New York. He was nominated in 1986 by then-president Ronald Reagan to the federal court based in Brooklyn. He has also served on the Foreign Intelligence Surveillance Court.
Huck was a prominent Florida lawyer who served as general counsel to Charlie Crist when Crist was the Republican governor of Florida. He is married to Barbara Lagoa, a judge on the 11th US Circuit Court of Appeals, which would hear any appeal in the Trump case from Florida. He is listed on the Federalist Society website as a contributor to the conservative legal group.
Lawyers for Trump said they believe the so-called special master should review all documents seized by the FBI during its search last month of Mar-a-Lago, including records with classification markings, and filter out any that may be protected by claims of executive privilege.
The Justice Department, by contrast, said it does not believe the arbiter should be permitted to inspect classified records or resolve potential claims of executive privilege.
A page from the Justice Department’s motion to appeal against a judge’s decision to name an independent arbiter
District Judge Aileen Cannon had given both sides until September 9 to submit potential candidates for the role of a special master, as well as proposals for the scope of the person’s duties and the schedule for his or her work.
The back-and-forth over the special master is playing out amid an FBI investigation into the retention of several hundred classified documents recovered from Mar-a-Lago within the past year.
Though the legal wrangling is unlikely to have major long-term effects on the investigation or knock it significantly off course, it will almost certainly delay the probe by potentially months and has already caused the intelligence community to temporarily pause a separate risk assessment.
The Justice Department proposed an October 17 deadline for the special master to complete the review process, while the Trump team said the work could take as long as three months.
Though both sides met Judge Cannon’s deadline to provide potential candidates, their filings made clear that they have core disagreements about the job of special master.
That is not surprising given that the Justice Department had strenuously objected to the Trump team’s desire for such an arbiter, and gave notice on Thursday that it would appeal against the judge’s decision to grant the ex-president’s request.
Central to the dispute is precisely what documents the yet-to-be-named special master should be tasked with reviewing.
Roughly 11,000 documents – including more than 100 with classified markings, some at the top-secret level – were recovered during the FBI’s August 8 search.
In granting the request for a special master, Judge Cannon directed the department to temporarily pause its use of the seized records for investigative purposes.
The Justice Department had said a special master was unnecessary in part because it had already completed its own review of the seized documents, locating a limited subset that possibly involve lawyer-client privilege.
It has maintained that executive privilege does not apply in this investigation because Trump, no longer president, had no right to claim the documents as his.
Though the government does not believe the special master should inspect documents with classification markings, the Trump team maintains the arbiter should have access to the entire tranche of seized records.
According to a summary of its position outlined in a filing on Friday night, it disputes the idea that the Justice Department’s ‘separation of these documents is inviolable’ or that a document with classification markings should be forever regarded as classified.
And, the lawyers say, if any document is a presidential document then Trump has an ‘absolute right of access to it’.
‘Thus, President Trump (and/or his designee) cannot be denied access to those documents, which in this matter gives legal authorization to the Special Master to engage in first-hand review,’ the filing states.
Pages from the decree approving former president Donald Trump’s request for the appointment of a special master to examine records found by the FBI during a search of his Mar-a-Lago estate.
While there are certain restrictions, executive privilege typically refers to the president’s ability to withhold information from the press and public in order to maintain the secrecy of presidential decision-making.
The costs and fees of the special master are the subject of a different controversy. The Trump campaign has proposed paying the Justice Department an equal share of the expenditures. According to the government, the Trump campaign should pay for it.
After Mr. Trump departed the White House, the agency began looking into whether any attempts were made to hinder the investigation as well as the illegal retention of top-secret data at Mar-a-Lago.
It is not clear if Mr Trump or anyone else will be charged.