By Alan Feuer and Charlie Savage

NEW YORK – A federal judge intervened Monday (5) in the investigation of former President Donald Trump’s handling of sensitive government records, ordering the appointment of an independent arbiter to review a trove of materials seized last month from Trump’s private club and residence in Florida.

In a 24-page ruling, the judge, Aileen M. Cannon of the US District Court for the Southern District of Florida, also enjoined the Justice Department from using the seized materials for any “investigative purpose” connected to its inquiry of Trump until the work of the arbiter, known as a special master, was completed.

The order would effectively bar federal prosecutors from using key pieces of evidence as they continue to investigate whether the former president illegally retained national defence documents at his estate, Mar-a-Lago, or obstructed the government’s efforts to get them back. It also appeared to grant Trump special deference as a former president, rejecting the Justice Department’s repeated assertions that it would pursue investigations of Trump just as it would those of any other person.

In her order, issued on the Labour Day holiday, Cannon said she made her decisions “to ensure at least the appearance of fairness and integrity under the extraordinary circumstances”. Her order would not, however, affect a separate review of the documents by the Office of the Director of National Intelligence seeking to determine what risk to national security their removal to Mar-a-Lago may have caused.

Justice Department officials last week had discussed the possibility of an appeal if the judge ruled in Trump’s favour, but a department spokesperson, Anthony Coley, demurred Monday when asked how it would respond.

“The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation,” he said.

Any appeal of Cannon’s ruling would be heard by a three-judge panel from the 11th US Circuit Court of Appeals in Atlanta. Of its 11 active judges, six were appointed by Trump.

Cannon’s ruling granted the special master wide-ranging authority to review the nearly 11,000 documents carted away from Mar-a-Lago by the FBI on Aug. 8, some of which bore markings labelling them as highly classified. It permitted whoever is appointed to the job to evaluate the documents not only for those protected by attorney-client privilege, a relatively common measure, but also for those potentially shielded by executive privilege, which typically protects confidential internal executive branch deliberations.

At a hearing last week concerning the question, the Justice Department argued that allowing a special master to conduct an executive privilege review of the seized material would be “unprecedented” and legally baseless since the department itself is part of the current executive branch and Trump is no longer in office.

“There is no role for a special master to play in executive privilege,” Julie Edelstein, a lawyer for the department, said at the time.

But Cannon, who was appointed by Trump, clearly disagreed with the Justice Department, writing in the order that she was “not convinced” of the government’s categorical assertion that executive privilege did not apply in this context. She added that she thought the department’s position “arguably overstates the law” and that setting aside any documents that could be shielded by executive privilege as the legal issues in the case are sorted out made sense.

“Even if any assertion of executive privilege by plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former president’s ability to raise the privilege as an initial matter,” she wrote.

In her order, Cannon evinced concern that Trump might suffer “reputational harm” from a search that was not conducted properly — or, as she added, from “a future indictment” that was based even in part on “property that ought to be returned.”

She noted that the inquiry of Trump needed to be undertaken with particular care and deference, placing him in his own category.

“As a function of plaintiff’s former position as president of the United States,” Cannon wrote, “the stigma associated with the subject seizure is in a league of its own.” She also noted that, because of the search of Mar-a-Lago, Trump faced “unquantifiable potential harm by way of improper disclosure of sensitive information to the public.”

Such statements flew in the face of the Justice Department’s repeated assertions that in investigating Trump, it would follow the facts and the law, just as it would during an inquiry into any other person.

Even though her ruling forbade the Justice Department from using the trove of materials seized from Mar-a-Lago in its investigation of Trump, it did not appear to bar prosecutors from using other means to pursue it. On Friday (2), in a court filing disclosed along with a detailed inventory of the items taken during the search, prosecutors said the documents inquiry remained an “active criminal investigation” that could involve “further investigative steps” — among them, “additional witness interviews and grand jury practice.”

Still, the ruling, which will require several time-consuming steps, will almost certainly slow down the investigation. Cannon will first need to appoint someone to perform the job of special master. Then that person will have to conduct a review of a large trove of documents and decide if any are protected either by attorney-client or executive privilege.

Cannon ordered the Justice Department and lawyers for Trump to send her by Friday a list of potential candidates for the special master job and suggestions for what powers the position would hold.

Even then, there could be further legal action. Trump’s lawyers have said they want to identify the privileged items, in part, as a precursor to filing a broad legal challenge to the search under the Fourth Amendment, which guards against unreasonable searches and seizures.

In the ruling, Cannon offered a few new details about the search itself. She noted, for example, that among the government records seized by the FBI, agents found some of Trump’s “medical documents, correspondence related to taxes, and accounting information.” The warrant for the search of Mar-a-Lago authorized the FBI to remove any boxes that contained government documents even if items of a more personal nature were discovered among them.

Cannon noted, in fact, that Trump’s personal items were identified and set aside by a so-called filter team of federal agents walled off from the team investigating Trump. Still, in her order, she cast doubt on the work of the filter team, saying, without giving specifics, that in two instances, materials that should have been identified as privileged ended up in the hands of prosecutors.

Cannon also said that the sheer amount of material seized from Mar-a-Lago justified naming a special master, adding that she alone was not equipped to pore over more than 10,000 of pages of documents to determine what should be part of the government’s investigation and what should not.

“Considering the volume of seized materials and the parties’ expressed desire for swift resolution of this matter,” Cannon wrote, “a special master would be better suited than this court to conduct the review.”

-New York Times