By Tierney Sneed and Marshall Cohen, CNN
Updated: Fri, 02 Sep 2022 23:59:48 GMT
A hearing Thursday in West Palm Beach, Florida, was the first chance former President Donald Trump's lawyers had to convince US District Judge Aileen Cannon in person that the FBI search warrant on Mar-a-Lago for government records, including those identified as classified, was unwarranted and merited an outside attorney to review the case.
Trump is asking for Cannon to appoint a special master -- a third party attorney tasked with filtering out privileged documents -- to review the materials that were seized.
In revelatory moments of the hearing, Trump's lawyers sought to downplay the importance of the documents, the Justice Department provided new details about how its internal filter team operated, and Cannon repeatedly asked Trump's side what a special master would do in this circumstance. (Typically the independent reviewers are used in scenarios where an attorney's office has been searched and protecting attorney-client privilege is the concern.)
Here is a look at what was said in revelatory moments from the 90-minute hearing, according to a transcript obtained by CNN:
Debates on who owns the records: Trump or the US government
Trump's lawyer calls to 'lower the temperature on both sides'
Early in the hearing, Trump attorney Chris Kise stressed to the judge that this was an "unprecedented situation" and there was a need "lower the temperature on both sides."
"What we are talking about here, in the main, are presidential records in the hands of the 45th President of the United States at a location that was used frequently, during his term as President, to conduct official business," Kise said.
"This is not a case about some Department of Defense staffer stuffing military secrets into a paper bag and sneaking out into the middle of the night," he added. "This is, as I say, Presidential records in the hands of 45th President of the United States."
Trump lawyer: Records dispute is 'an overdue library book scenario'
Later in the hearing, James Trusty, another attorney for Trump, argued there was no basis for the Justice Department to launch a criminal investigation over mishandled documents at Mar-a-Lago.
"So we are in a situation where, literally, they have taken a -- we have characterized it at times as 'an overdue library book scenario' where there is a dispute -- not even a dispute, ongoing negotiations with NARA about archives that has suddenly been transformed into a criminal investigation," Trusty said.
Trusty went on to say that because the situation was, in his view, a civil disagreement over presidential archives, and should not have been a criminal probe, the FBI agents were "never entitled to walk through the doors and seize any of these items" from Mar-a-Lago.
Justice Department: Trump is no longer the president
Justice Department lawyer Jay Bratt sought to lay out what legal test the judge should be using as she weighed Trump's request, as Bratt argued that that Trump had not met it. Under the legal test, known as rule 41(g), Trump would need to show that he had a "possessory interest" in the property in question, Bratt said, and he pivoted to describe "the Presidential records that the 45th President took."
"He is no longer the President; and because he is no longer the President, he did not have the right to take those documents," Bratt said.
"He was unlawfully in possession of them; and because he has no possessory interest in those records, that ends the analysis under Rule 41(g)."
Judge says there 'has never been a seizure of this magnitude of a former president'
Arguing for the government, DOJ attorney Julie Edelstein explained to the judge why an appointment of a special master wasn't a "modest" step, as Trump's team suggested.
Edelstein: "On the executive privilege issues, it would not be modest, it would be unprecedented."
Cannon: "Why is that?"
Edelstein: "There is no role for a special master to play in executive privilege, and that is why it has not been done in the past.
Cannon: "Isn't that also because there has never been a seizure of this magnitude of a former president?"
Trump team disputes that documents marked as classified were, in fact, classified
The judge asked Trump's lawyers if they were asserting any privilege besides attorney-client privilege.
"Well, we are not conceding the fact of classification, I should make that one hundred percent clear, in terms of whether any of these items remain classified," Trusty said.
With some prodding from the judge, he claimed that "executive privilege is in play."
Trusty pushed back a second time in the hearing on the idea that the documents were classified, when he was asked why Trump couldn't wait to challenge what was seized at a later stage in the process.
"The Court will probably recognize -- I'm not asking for an opinion -- that the warrant itself not only allows for gathering papers around their classified materials seizure, which again we even dispute whether it is classified or whether they are entitled to seize it or whether it is in the right paradigm, but boxes in the vicinity, documents in the vicinity," he said.
On why a special master is or isn't necessary
Judge asks multiple times what a special master would do
As Trusty described appointing special master as a "very modest step," Cannon asked him for some clarity for what that third party would do.
"To do what exactly?" the judge asked.
A special master, Trusty said, "would address not just attorney-client and work product issues and resolve those or at least recommend resolutions of those, but to deal with the overarching paradigm here that actually matters that they are trying to criminalize which is the judicially unenforceable Presidential Records Act."
Later on, the judge asked again what exactly the special master was to do, as Trusty referred to the need to have the independent actor to "assess things."
"And so, finally, when you say 'assess things,' in the most precise way possible, what do you envision and contemplate the special master actually doing with respect to review of documents broadly?" she asked.
Cannon asks the DOJ 'what is the harm' in appointing a special master?
"Ultimately, what is the harm in the appointment of a special master to sort through these issues without creating undo delay, to do an orderly fashion, receive these materials, receive claims of privilege and go through it giving both sides a full opportunity?" Cannon asked Edelstein.
"I guess what I'm wondering from the Government, you know, is what is your articulation of harm other than just the general concern that it would delay a criminal investigation?" the judge continued.
Edelstein responded: "First of all, those are very legitimate concerns; and, at the outset, even if there was an appropriate assertion of executive privilege, it is undisputed that the executive privilege is a qualified privilege."
Edelstein described "multiple very significant legitimate interests."
"One is the criminal investigation, and under Nixon v. United States, that is clearly recognized as a very significant interest, even if the materials had to be provided outside of the Executive Branch which here they don't which shows how [limited] the intrusion is," she said. "It would be unprecedented for the executive to be able to successfully assert privilege against the Executive Branch."
Judge asks why Trump waited two weeks to request a special master
Cannon pressed Trump's lawyers why they waited until two weeks after the Mar-a-Lago search to file their lawsuit requesting a "special master."
"Not to alienate the Court on this issue, part of that I don't think I can disclose," Trusty said. "As with any kind of decision about the timing of filing, the nature of filing, some of that is going to, unfortunately from where I stand right now, fall into a category that I'm not comfortable sharing in open court. But I would also say more fundamentally, we were trying to have communications with the US Attorney's Office."
He went on: "We had multiple communications early. We asked them what their position would be on a special master. We were hopeful that there would be some transparency that carried through to really let us assess what was seized, how it was seized, what the basis of the affidavit was, and then we wouldn't have to get to this point of involving the Court. So there was some period of time."
The Justice Department responded that Trump asked for a special master just once, the day after the search.
DOJ attorney Bratt also said he was reluctant to get into the department's conversations with Trump's lawyers. But since the communications were referenced in the briefs, he said "I would say that on the morning after the search, so 13 days before the filing of the motion, we declined their request for a special master."
"There has been no subsequent re-upping of that request to us," he said.
DOJ says it cast a wide net with its filter team
A member of DOJ's filter team -- the group of agents separate from those involved in the investigation who were tasked with reviewing and segregating out any potentially privileged items -- described the process to Cannon.
Benjamin Hawk, a filter team member, first mentioned the status report from the filter team that was filed under seal this week. (That was separate from the investigative team's status report, and the judge opted not to order its release after a Trump attorney asked that it remain under seal.)
"I want to make clear that the filter team agents applied a very broad and expansive criteria and standard to attorney-client privilege being any document that they saw that appeared to be legal in nature were contained in the attorney name -- or readily identifiable attorney name, they immediately segregated and identified as potentially privileged," Hawk said.
While the FBI affidavit filed in court to obtain the warrant described plans to have the filter team, instead of the investigative team, search Trump's office -- the filter team also did an initial review of the storage room before the case agents, he added.
"And upon finding items that appear, again applying an extremely expansive view of the attorney-client privilege to be over-inclusive and err on the side of caution given the circumstances of the search, when they identified something that was legal in nature or contained a name of readily identifiable attorney, they then -- that, for example, was in a box commingled with evidence responsive to attachment B, they sealed that box, they marked it as potentially privileged, and the filter agents maintained custody and control and segregated that from the case team from the moment that evidence was identified to the point where it was transferred to the Washington field office."
Justice Department questions about document storage and process
DOJ: How would Trump store any documents he got back?
The DOJ expressed concern about how Trump would store any documents he got back in a special master review process under the special master proposal pushed by the former President.
"We have no idea where they would be stored," Bratt said.
"And again, this would be giving access to people things that they do not have the right to have access, at this point in time, all for, you know, what we think is a fanciful view that somehow they would be successfully able to interpose an executive privilege objection that would prohibit the Executive Branch from reviewing the Executive Branch materials for a core Executive Branch function," he said.
DOJ rebuts Trump claims that prosecutors are wrongly trying to criminalize the Presidential Records Act
Trump has argued in the case that the department is inappropriately using the Presidential Records Act, a law that is not criminally enforceable, against him. Bratt pushed back at that argument Thursday.
"This was a lawful search," he told the judge. "This was not, as the magistrate judge found in finding probable cause for violations of three criminal statutes, this was not an end run around the Presidential Records Act. This is a valid search warrant for evidence of three significant federal crimes."
Top DOJ official says he's not aware of any media leaks
Bratt is the Justice Department's counterintelligence chief and he has played a key role at multiple steps of the Trump records investigation.
Cannon asked Bratt if he was aware of any "leaks or disseminations of information to the media" about what was seized at Mar-a-Lago.
"Not on the part of anybody that I'm working with. Obviously, you know, things -- I see the same things in the press that other people do. It's bad," Bratt said. "People are talking. If people on the Government's side are talking about it, I'm not aware of anybody that we work with that has had contact with the press and certainly don't condone it in any way."
This headline has been updated.