In an exclusive report posted at 10:11pm EDT on August 13, 2022, Brooke Singman of FOX News broke the story that the FBI had seized privileged documents during their infamous raid on former President Donald Trump's Mar a Lago estate in Palm Beach, Florida.
Singman reported the FBI seized boxes containing records covered by attorney-client privilege and potentially executive privilege during its raid of former President Trump’s Mar-a-Lago home, sources familiar with the investigation told Fox News, adding that the Justice Department opposed Trump lawyers' request for the appointment of an independent, special master to review the records.
The action by the FBI in seizing documents covered by attorney-client privilege has an eerie and frightening precedent in the way the FBI seized attorney-client material from Project Veritas and then leaked it to The New York Times.
Sources familiar with the investigation told Fox News Saturday that the former president’s team was informed that boxes labeled A-14, A-26, A-43, A-13, A-33, and a set of documents—all seen on the final page of the FBI’s property receipt —contained information covered by attorney-client privilege.
Attorney-client privilege refers to a legal privilege that keeps communications between an attorney and their client confidential.
Sources told Fox News that some records could be covered by executive privilege, which gives the president of the United States and other officials within the executive branch the authority to withhold certain sensitive forms of advice and consultation between the president and senior advisers.
The issue of executive privilege is at the heart of Steve Bannon’s dispute with Pelosi’s January 6 Committee and the intrusive investigations of other Trump associates whom the J6 Committee is attempting to intimidate into providing suspect testimony against the former President.
It is unclear, at this point, reported Singman, if the records include communications between the former president and his private attorneys, White House counsel during the Trump administration, or a combination.
Now here’s the kicker: sources told Fox News that, due to attorney-client privilege, Trump’s team asked the Justice Department for their position on whether they would support a third party, independent special master to review those records, but sources told Fox News that the DOJ notified Trump's team that they would oppose that request.
As Zach Schonfeld reported for The Hill, attorney-client privilege enables communications between an attorney and their client to remain private during an investigation, while executive privilege allows the president to keep some communications private from the other two branches of government.
But the latter privilege is not absolute, noted Mr. Schonfeld. During the Watergate scandal, the Supreme Court ruled in United States v. Nixon that executive privilege cannot be used to withhold evidence “demonstrably relevant in a criminal trial.”
So, why wouldn’t the Department of Justice go along with the appointment of a Special Master to oversee claims of attorney-client privilege, which is a perfectly normal procedure in cases where such documents are in dispute?
As Thomas E. Spahn of McGuireWoods LLP wrote in an article for Lexology, the judge handling the criminal case against President Trump's former lawyer Michael Cohen appointed a special master to review for privilege or work product protection documents the government seized from Cohen's office. The media covered this as newsworthy, but special masters frequently play such a role.
In Winfield v. City of New York, Judge Parker appointed respected retired Judge Frank Maas as a special master to review defendant City's withheld documents – noting that the "task of reviewing 3,300 documents is enormous and one that this Court cannot complete before the end of fact discovery." No. 15-cv-05236 (LTS) (KHP), 2018 U.S. Dist. LEXIS 79281, at *25 (S.D.N.Y. May 10, 2018).
Corporate litigants should carefully consider suggesting that courts appoint such special masters wrote Mr. Spahn. Billing by the hour, special masters frequently spend more time analyzing privilege and work product assertions. This sometimes contrasts with overworked judges, who often look primarily (if not exclusively) on the face of withheld documents for clients' explicit requests or legal advice or lawyers' explicit legal advice in response. (Emphasis added by CHQ.)
Former President Trump on Sunday called on the FBI to return documents reportedly seized at Mar-a-Lago that are protected by attorney-client and executive privileges.
“Oh great!” Trump wrote on Truth Social. “It has just been learned that the FBI, in its now famous raid of Mar-a-Lago, took boxes of privileged ‘attorney-client’ material, and also ‘executive’ privileged material, which they knowingly should not have taken,” Trump continued.
“By copy of this TRUTH, I respectfully request that these documents be immediately returned to the location from which they were taken,” he added. “Thank you!”
Federal courts in the District of Columbia have been singularly hostile to President Trump and his supporters and former staffers. It takes little imagination to regard the Department of Justice’s seizure of attorney-client privileged documents and the Department’s opposition to a Special Master review as simply another step in the effort to railroad Trump with a DC-based indictment and jury.
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