Cannon ruled on Sept. 5 that she would name an independent arbiter, or special master, to do an independent review of those records and segregate any that may be covered by claims of attorney-client privilege or executive privilege and to determine whether any of the materials should be returned to Trump. Raymond Dearie, the former chief judge of the federal court based in Brooklyn, has been named to the role.
The Justice Department had argued that a special master review of the classified documents was not necessary. It said Trump, as a former president, could not invoke executive privilege over the documents, nor could they be covered by attorney-client privilege because they do not involve communications between Trump and his lawyers.
Trump’s lawyers argued that an independent review of the records was essential given the unprecedented nature of the investigation. The lawyers also said the department had not yet proven that the seized documents were classified, though they notably stopped short of asserting — as Trump repeatedly has — that the records were previously declassified.
They have resisted providing Dearie with their position on that question, signaling the issue could be part of their defense in the event of an indictment.
But the appeals court appeared to scoff at that argument.
“Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified,” they wrote. “In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.”