Donald Trump is strongly considering seeking the appointment of a special court official to determine whether materials that the FBI seized from his Florida resort can be used in a criminal investigation, according to his lead attorney Jim Trusty and two sources familiar with the matter.
The motion – if actually filed – would be the first formal legal action by the former president after federal agents last week confiscated about 30 boxes of highly sensitive documents from his Mar-a-Lago resort in an investigation into the unauthorized retention of government secrets.
Trump would argue that the court should appoint a special master – usually a retired lawyer or judge – because the FBI potentially seized privileged materials in the search, and the justice department should not itself decide what it can use in its investigation, the sources said.
The ex-president’s lead attorney, Trusty, said on the Mark Levin Show on Friday evening that he was anticipating a motion that would force the justice department to disclose what “pre-raid” instructions were given to the FBI agents who executed the search warrant at Mar-a-Lago.
Trusty, a former chief of the organized crime section at the justice department, also said on the radio show that a court filing could come either that evening or the following Monday, though he added: “It’s probably going to be more like hours.”
But the lack of any entry on the Mar-a-Lago docket over the weekend appeared to suggest that for all Trusty’s declarations, the Trump legal team has not settled on a singular defense strategy, as it struggles to parse what the justice department may do next in its investigation, the sources said.
The justice department’s counterintelligence chief, Jay Bratt, said in court this week that the investigation surrounding the Mar-a-Lago search was still in “early stages”, though references to the Espionage Act and obstruction statutes in the search warrant could reflect legal peril for Trump.
Why Trump is considering filing a motion now, nearly two weeks after the FBI searched Mar-a-Lago, was not clear. The former president and his allies have previously moved quickly to request special masters, including when the office of his former lawyer Michael Cohen was searched in 2018.
The timing is important because the federal agents who execute search warrants are typically themselves members of a so-called taint team and filter what they remove from a property in real time. For documents with classified markings, those are sent to relevant agencies for review.
But the nearly two-week delay means that even if Trump had filed a motion when Trusty first indicated, and the court restrained the justice department from further examining the seized materials until filtered by a special master, prosecutors may have already sifted through it all.
The impetus to file a motion now, the sources said, appears to have come in part as a reaction to criticism from other Trump allies that the former president’s legal team had not filed a motion to unseal the affidavit underpinning the Mar-a-Lago search, or any other formal legal action.
Trump was unimpressed that Fox News host Laura Ingraham repeated that criticism in an interview Thursday with one of his lawyers, Christina Bobb, one of the sources said, and indicated that he thought his lawyers should be fighting harder on his behalf against the justice department.
Another person close to the former president said that account was “fake news”. Trusty – and two other lawyers on the Trump legal team – did not respond to a request for comment.
But the announcement about a potential filing by Trump came less than 24 hours after the Fox News segment, while Bobb’s appearance – now widely seen as the face of Trump’s defense team in this case – was also the subject of internal criticism among aides, the sources said.
The news about a potential court filing in the Mar-a-Lago case first came from Trump himself. “A major motion pertaining to the Fourth Amendment will soon be filed concerning the illegal Break-In of my home, Mar-a-Lago,” the former president said on his social media website on Friday, alluding to the constitutional protection against unreasonable searches and seizures.
Note: This post was updated to note there had still not been a filing on Sunday.
