The government doesn't want to allow an independent review of the documents it's seized.
Federal judge Aileen Cannon, a Trump appointee, granted that motion last week, holding a special master shall be appointed to review the seized property, "Manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property." Significantly, Judge Cannon also entered an injunction prohibiting the government from using the documents "For criminal investigative purposes pending resolution of the special master's review process." The court then ordered the parties to recommend individuals to fill the special master role, along with proposed procedures for the process by last Friday.
" The Biden administration's claimed urgency strikes a surreal chord given that the DOJ waited six months to seize the classified documents after learning materials returned to the National Archives and Records Administration included documents bearing the classification markings.
Biden Admin Seeks to Relitigate Trial Court's Order The government's motion to stay also, in effect, attempts to reargue the DOJ's position that there is no basis for a special master to review the documents bearing classification markings.
First, the government maintains that because the documents bearing classification marking cannot possibly be private records in which Trump has an interest, the court lacked the authority to appoint a special master to review those documents.
At a minimum the special master's review of the documents bearing classification markings provides assurances that the agents reviewing the documents properly segregated them.
In enjoining the government from using the seized documents as part of its criminal investigation, Judge Cannon stressed that the question is not that simple.
Some parameters appear clear such as that documents privileged by executive privilege cannot be used by the grand jury, yet the DOJ can nonetheless review those documents.
A problem arises if the same FBI agents who reviewed documents protected by executive privilege then present a criminal case to a grand jury, taking advantage of the knowledge they gleaned from the content of the privileged documents.
A few months' delay to allow the special master to review the documents is far from an "undue delay," unless the Biden administration's focus isn't a "fair and expeditious administration of the criminal laws," but midterm elections.
As Judge Cannon detailed, there are several valid purposes, including ensuring the documents were properly segregated and do not involve privileged documents.
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