Trump's team is saying this week that they have to ask for a "special master" to sift through the documents taken from Mar-a-Lago to determine whether possession of them can be used in a criminal investigation. The problem with that is that it isn't likely to happen.
According to The Guardian's reporter Hugo Lowell, lead Trump attorney Jim Trusty, and two other sources, say that Trump wants an independent court person to decide if the FBI took privileged documents. Trump has claimed as much over the past few weeks. At one point, he said that the documents taken were part of attorney/client privilege.
As a former prosecutor under Robert Mueller, Andrew Weissmann explained, there are no executive privilege claims that Trump can make and there's no basis to believe that an attorney/client privilege even exists.
\u201cSpecial Master? \nA. Too late\nB. There can\u2019t be exec priv claim as it\u2019s the exec who is doing the search and holds the privilege\nC. Att client: no basis to believe any there and DOJ\u2019s existing taint team can sift that out.\u201d— Andrew Weissmann (@Andrew Weissmann) 1660959712
It has been reported that among the boxes taken by the FBI were top secret documents with the highest classification level, including information on nuclear weapons. It means that the search that was conducted was one that only gathered the information without examining it. The documents have had to be sifted by those with the classification levels to look at them.
A so-called "special master" is usually a retired judge or lawyer who looks through for documents that would be between Donald Trump and his personal lawyers. The documents weren't personal ones, they were from his presidency. If the documents included contained conversations between Trump and the White House counsel, those are also not documents that fall under Trump's attorney/client privilege because the White House counsel works for the people, not Trump personally.
At the same time, the classification level of the documents complicates the situation even further. The court-appointed person would also have to have the classification level to ensure they could look through some of the more concerning information.
The request comes a little late in the process too, as Weissmann points out. The investigators have already been going through the documents. The time that it would take for Trump's team to file the necessary court documents and find a person with the classification level necessary, the team might be finished sifting through the documents.
As New York Times reporter Maggie Haberman explained, Trump is typically really aggressive when it comes to legal attacks. This time around, however, he's been slow to respond, particularly given he'd been dealing with the FBI for months over the documents.
\u201cTrump, who is normally aggressive in legal cases, has been uncharacteristically sluggish in reacting to dealing with what was taken during the search\u201d— Maggie Haberman (@Maggie Haberman) 1660961839