AMAC Exclusive – By Katie Sullivan
On Monday, in a major legal victory for former President Donald Trump, a U.S. District Court Judge in Florida granted Trump’s request to appoint a “special master” to review the materials taken from his Mar-a-Lago home last month. The decision is the latest sign that top officials at the Department of Justice may have acted unlawfully in organizing and executing their raid on Trump’s property, and further legitimizes concerns that the Biden administration is using federal resources to target a prospective political opponent – violating his civil rights in the process.
District Judge Aileen Cannon’s ruling means that, rather than FBI and DOJ officials reviewing the evidence seized from Trump’s property and deciding what falls under attorney-client privilege (and thus cannot be used as evidence by DOJ investigators in a potential indictment), a third-party attorney from outside the government must be brought in to make that determination. The order also stops DOJ from continuing its review “pending completion of the special master’s review or further Court order.”
In essence, Cannon held that given the unprecedented nature of the raid – a presidential administration targeting a former president and likely future opponent – the Department of Justice could not be trusted to properly sort through the thousands of materials it seized from Mar-a-Lago.
Justice Department officials had argued that the appointment of a special master was unnecessary, as they had already assigned a so-called “filter team” to determine which materials fell under attorney-client privilege. But Cannon explicitly rejected that argument, noting that even some of the more than 500 documents marked by the filter team that should have been off-limits had already been viewed by investigators, undermining the integrity of the entire investigation and casting doubt on the Biden administration’s narrative about the motivation for the raid.
The fact that DOJ appointed a filter team should itself raise concerns from every American about both the politicization of the Department and potential civil rights violations. For one thing, filter teams themselves – which are a creation of DOJ – have been the subject of great debate in the courts since their creation three decades ago. Federal judges have variously held that filter teams have inherent conflicts of interest, carry an “inevitable” risk of disclosure of privileged material, and amount to leaving “the government’s fox in charge of guarding the Law Firm’s henhouse.” Currently, the U.S. Supreme Court is deciding whether to review the decision of a lower court in which the central issue is whether DOJ’s use of filter teams violates the U.S. Constitution.
Internal DOJ guidelines – which are themselves predicated on the Fourth Amendment’s prohibition on unreasonable searches and seizures – also outline specifically that search warrants “should be drawn as specifically as possible, consistent with the requirements of the investigation, to minimize the need to search and review privileged material to which no exception applies.” Those guidelines also stipulate that when it comes to searching a property that may contain privileged documents – such as someone’s home – investigators must identify the “least intrusive” approach to obtain information.
It appears that in Trump’s case, neither of these guidelines (and perhaps the Fourth Amendment) were followed. Sending 30 armed agents to ransack Trump’s home hardly seems the “least intrusive” option. The search warrant the FBI obtained for the Mar-a-Lago compound also went far beyond Trump’s semi-official and partially government-funded office (a privilege afforded to all former presidents) and allowed agents to rifle through every nook and cranny of the 62,000 square-foot compound, from Melania Trump’s closet drawers to Trump’s 16-year-old son’s room. The inventory of materials taken reveals that the search was hardly contained to things relevant to the Justice Department’s investigation, listing news articles dating back to the 1990s and even articles of clothing. Passports, tax accounting information, and even medical charts were seized from Trump’s home, all under the auspices of recovering “classified” information.
That the Justice Department would now so vigorously oppose the appointment of a special master after clearly exceeding the scope of their investigation should also be puzzling to any objective observer. As Judge Cannon herself noted in the decision, “Ultimately, what is the harm in appointing a special master?” Trump’s attorney, Christopher Kise, echoed that sentiment, asking a basic but critical question of the Biden DOJ: “What is the harm they are so worried about?”
If Republicans do as many expect and retake control of the House of Representatives this fall, they may do well to open investigations of their own to solicit answers to these questions and more from the Biden administration. While disheartening, it is not difficult to imagine what such an investigation may reveal. Did DOJ consult with members of the White House staff prior to filing this warrant? Likewise, did DOJ consult with outside Democrat lawyers such as Mark Elias? Did the White House seek the counsel of pollsters, like they did to determine when mask mandates should be lifted? It already seems quite evident that DOJ did not follow its own internal protocols in this case – why not, and who is responsible for that breach of duty? Moreover, if there were any violations of Trump’s civil rights, Republicans should ensure that those responsible are held accountable under Title 18 Section 242 of the U.S. Code, which criminalizes such acts.
As bad as things may seem now, it could get even worse should the Biden administration choose to move forward with a grand jury indictment of Trump. A grand jury must only find that there exists evidence of probable cause before issuing an indictment, a much lower standard of proof than the “beyond a reasonable doubt” standard required for conviction in a criminal trial. If a grand jury returned an indictment, the DOJ would have full discretion over whether to issue a summons or warrant to compel Trump to appear in a D.C. Court. If there were an indictment and the Attorney General Merrick Garland chose the latter course of action, former President Trump could be marched out of Mar-a-Lago in handcuffs – no doubt in front of dozens of CNN news cameras.
In what is looking to be just the latest iteration of the “Russia hoax”, the Biden DOJ is attempting to play investigator, judge, and jury, constituting a dangerous overreach of executive authority and a blatant violation of former President Trump’s civil rights. Americans of both political parties are right to be deeply alarmed and frightened by this development, the most shocking violation of “democratic norms” by an administration seemingly hell-bent on using the power of the federal government to silence all dissent.
Katharine “Katie” Sullivan was as an Acting Assistant Attorney General and a senior advisor to the White House Domestic Policy Council under President Trump. She previously served 11 years as a state trial court judge in Colorado.