In documents review, special master tells Trump team to back up privilege claims

WASHINGTON — The special master reviewing materials seized by the FBI from former President Donald Trump's compound in Florida expressed skepticism Tuesday about early claims by Trump's lawyers that certain documents were privileged and thus could be withheld from a Justice Department investigation.

In a phone conference, the special master, Judge Raymond Dearie of U.S. District Court in Brooklyn, New York, complained that the log of an initial batch of documents over which Trump is seeking to claim privilege lacked sufficient information to determine whether the arguments were valid.

Dearie encouraged Trump's lawyers to give him a better sense of why they believed the documents could be lawfully shielded from the Justice Department's inquiry into whether Trump unlawfully kept classified records at his estate and obstructed the government's repeated efforts to retrieve them.

"It's a little perplexing as I go through the log," Dearie said. "What's the expression — 'Where's the beef?' I need some beef."

The hearing was the latest step in the review process that began last month when Dearie was named special master by one of Trump's appointees, Judge Aileen Cannon of the Southern District of Florida.

In August, FBI agents conducted a court-authorized search of Trump's Mar-a-Lago estate in Florida and hauled away some 11,000 documents and photographs, most of them apparently government property and more than 100 of them marked as classified.

Later that month, the former president's lawyers filed a lawsuit seeking to temporarily bar the Justice Department from using the materials in its investigation of Trump and asking for a special master to assess whether any of the records were protected by either attorney-client privilege or executive privilege.

Cannon, surprising legal experts, granted the request, which the Justice Department has appealed.

The conference call Tuesday centered on a small subset of the seized documents, which the Justice Department had already set aside from the main trove. That process was conducted by a so-called filter team, a group of agents and prosecutors who are walled off from those conducting the investigation.

The disputes about the small batch of records could foreshadow conflicts that might emerge as the rest of the materials come under review.

Dearie seemed doubtful, for instance, about one document that Trump's lawyers claimed was his personal property — not a government record — and yet also claimed was protected by executive privilege, a designation that is generally used for presidential records.

"Unless I'm wrong, and I've been wrong before, there's certainly an incongruity there," Dearie said.

The judge also said he wanted more information to support the former president's claims that some of the documents were shielded by attorney-client privilege. To that point, he asked for the names of any lawyers connected to such materials and suggested that Trump's team had asserted privilege over other records even though a third party was involved, suggesting they were not confidential.

"Where third parties are involved in the document, I need some understanding why the presence of the third party doesn't defeat the privilege," he said.

James Trusty, a lawyer for Trump, responded to Dearie's invitation to address such matters in a submission by saying that the legal team would "certainly take you up on it."

As the hearing got underway, Dearie also noted that even though Trump's lawyers had at one point said that the 11,000 or so documents amounted to about 200,000 pages, the actual number has turned out to be only 21,792 pages.

The reason for the discrepancy, a Justice Department lawyer said, was that a company hired to scan the documents and upload them into a database so that they could be shared with Trump's legal team had overestimated the page count.

During the conference, Dearie chided both sides for not resolving more issues themselves, including a dispute over whether a certain unsigned legal letter addressed to the Justice Department had been sent to the government.

It remains unclear whether the special master process will play out to its conclusion.

The Justice Department recently asked the 11th U.S. Circuit Court of Appeals in Atlanta to overturn Cannon's original decision to intervene in the case and appoint a special master in the first place. The appeals court has already blocked a portion of Cannon's order and exempted about 100 documents marked as classified from the review.