The dispute now seems to be up to Judge Aileen M. Cannon to resolve, with each side proposing two people as possible special masters to examine the material confiscated by agents in the Aug. 8 search of Mar-a-Lago.
The Justice Department’s two proposed candidates are retired judge Barbara S. Jones, who acted as a special master in an investigation of Trump’s former lawyer, Rudy Giuliani; and Thomas B. Griffith, a retired appeals judge for the District of Columbia Circuit.
The former’s president legal team requested that a special master — a neutral arbiter that can assist a judge in reviewing documents — be appointed in the case, and Cannon ruled in Trump’s favor.
But the Justice Department opposes parts of that decision and this latest filing suggests that the two parties still agree on little. They agree on shortening the 21-day period in which they are legally permitted to review and object to the special master’s eventual recommendations; they also agreed that in conducting a review, the special master should be able to request the help of support staff.
The two sides are at odds, however, on the legal issues at the core of the case — including what materials the special master should be allowed to examine and whether Trump, as a former president, should be able to assert any executive privileges in this review.
The government said in its filing that any special master review should exclude the more than 100 classified documents seized in the Aug. 8 raid. Prosecutors also do not want the special master to consider whether any documents may be covered, in theory, by claims of executive privilege, which they say cannot be claimed by a former president — or from one part of the executive branch to another.
The Trump legal team wants the special master review to include classified documents and says the outside expert should consider executive privilege when examining the materials.
Trump’s lawyers asked the federal judge last month to appoint a special master to sift through more than 10,000 seized documents and determine if anything the FBI took may be protected by attorney-client privilege or his status as a former president.
The two parties also disagree on who should pay for the special master — a decision that’s ultimately up to the judge. Trump’s team said the cost should be split 50-50. The Justice Department said that Trump’s team requested the special master and should bear 100 percent of the costs.
The Friday evening filing did not include the parties’ respective responses to the other side’s special master candidates. The two sides said they would inform the judge of their stances on the proposals by Monday.
In her ruling to appoint a special master, Cannon said that the government would be barred from using the seized documents as part of its criminal investigation until the special master assessment is completed. Prosecutors are investigating the possible mishandling of classified information, as well as the possible hiding, tampering or destruction of government records.
The government’s appeal asked for a partial stay on Cannon’s ruling, arguing that a special master should not be allowed to review the classified materials — and that investigators should be able to use these sensitive materials immediately as part of their probe.
The Justice Department also said it plans to file an appeal of the decision in the U.S. Court of Appeals for the 11th Circuit in Atlanta.