Five Takeaways From DOJ Filing on Why Trump Shouldn't Get Special Master

The Department of Justice (DOJ) has filed its full response to former President Donald Trump's request seeking a special master in the review of the documents seized during the FBI search of Mar-a-Lago on August 8.

On Tuesday, the DOJ filed 36 pages after it was granted permission to go beyond the 20-page limit set by local rules. Prosecutors argued that the limit was insufficient for the agency to "adequately address the legal and factual issues raised by" the filings from Trump's legal team.

The new filing comes just a day after the DOJ submitted another filing acknowledging the preliminary order issued by Judge Aileen Cannon of the Southern District of Florida over the weekend.

Monday's filing revealed that the DOJ has already used a "filter team" to review the Mar-a-Lago documents and weed out which ones contained privileged information. Using a review team undercuts Trump's request, which Cannon said she was inclined to grant, for an outside special master to oversee the evidence.

The new lengthier filing provided additional information about the DOJ's investigation, including more details about what was seized from Trump's Florida home and the status of the department's review of materials. Here are the key takeaways from Tuesday's document:

Trump DOJ Special Master
Pages from the government’s released version of the FBI search warrant affidavit for former President Donald Trump's Mar-a-Lago estate on August 27, 2022. The Justice Department filed subsequent documents to the court on Tuesday in response to Trump's request for a special master in the review of evidence. Mario Tama/Getty Images

1. Efforts 'Likely Taken to Obstruct' the Investigation

The Department of Justice said in its filing that some of the documents it had been seeking may have been removed from the storage room at Mar-a-Lago and that there may have been efforts to obstruct the probe.

The filing said that the DOJ came to believe relevant files had been kept both in the storage room and elsewhere despite being told that all White House documents had been held in the storage room on June 3. That day, three FBI agents and a DOJ attorney went to Mar-a-Lago to retrieve documents following a grand jury subpoena . They were met by the former president's counsel and a custodian of his records, who provided them with documents that were sought as part of the investigation. The custodian provided them with a certification saying that a "diligent search" had been conducted and that "any and all" documents responsive to the subpoena accompanied the certification.

Trump's counsel "further represented that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched," the filing said.

The DOJ also said that agents were prevented by Trump's counsel from "opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained" on June 3.

The DOJ wrote that "the government developed evidence that a search limited to the Storage Room would not have uncovered all the classified documents at the Premises."

"The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government's investigation," they said.

2. Doubts About Trump's Cooperation

The DOJ filing calls into question the extent of former President Donald Trump's cooperation with the investigation and pointed to documents that had been returned on June 3 following a grand jury subpoena.

The filing said that twice as many classified documents had been found during the August 8 search as had been returned on June 3 following a "diligent search" by Trump's custodian of records.

"That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the 'diligent search'; that the former President's counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter," the DOJ said.

3. No Assertion That Documents Were Declassified

Former President Trump and some of his allies had previously said that the documents at Mar-a-Lago may have been declassified by Trump before he left office. However, the DOJ's filing says there was no assertion that documents retrieved on June 3 had been declassified.

"On June 3, 2022, three FBI agents and a DOJ attorney arrived at the Premises to accept receipt of the materials. In addition to counsel for the former President, another individual was also present as the custodian of records for the former President's post-presidential office," the filing said.

"When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege," the filing went on.

The DOJ added that "counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents."

4. Records 'Do Not Belong' to Trump

As part of its argument against the appointment of a special master, the DOJ filing said that the documents at the center of the probe don't belong to the former president, so he lacks "standing." It added that Trump would suffer "no injury" if he's not granted one.

"As an initial matter, the former President lacks standing to seek judicial relief or oversight as to Presidential records because those records do not belong to him. The Presidential Records Act makes clear that '[t]he United States' has 'complete ownership, possession, and control" of them,'" the filing said.

"Plaintiff is not likely to succeed on the merits; he will suffer no injury absent an injunction—let alone an irreparable injury; and the harms to the government and the public would far outweigh any benefit to Plaintiff," the filing added.

5. Special Master Could Impede Investigation

The DOJ filing argues that Trump lacks standing and that a special master is unnecessary but also that appointing a special master would impede the ongoing investigation.

The filing pointed out that "the government's privilege review team has already identified any materials potentially subject to attorney-client privilege" and the investigative team has reviewed materials not segregated by that review.

Appointing a special master "would do little or nothing to protect any legitimate interests that Plaintiff may have while impeding the government's ongoing criminal investigation, as well as the Intelligence Community's review of potential risks to national security that may have resulted from the improper storage of the seized materials."

Per Cannon's order, Trump must file his response to the DOJ by 8 p.m. ET Wednesday, ahead of Thursday's scheduled hearing to consider his request for a special master.