Donald Trump’s assertions of executive and attorney-client privilege over certain documents that the FBI seized from his Mar-a-Lago resort appeared to lack evidence sufficient for him to rule in the former US president’s favor, the special master reviewing the records suggested on Tuesday.
The special master, senior US district court judge Raymond Dearie, complained during a conference call in the case that the log of documents Trump is trying to withhold from the justice department did not give enough information about the validity of the privilege claims.
Dearie encouraged Trump’s lawyers to elaborate on why they believed the documents could be excluded from the justice department’s criminal investigation into the potential willful retention of national defense information, removal of government records and obstruction of justice.
“It’s a little perplexing as I go through the log,” Dearie said. “What’s the expression – ‘Where’s the beef?’ I need some beef.”
The discussion on the conference call was the latest development in the ongoing review that is examining whether any of the 11,000 documents without classified markings seized from Mar-a-Lago are legally privileged and cannot be used by prosecutors in the criminal investigation.
Trump sought the appointment of a special master and argued to US district court judge Aileen Cannon in Florida – a Trump appointee – that the justice department should not itself decide whether some of the documents were potentially protected by executive or attorney-client privilege.
The request was granted in an unprecedented ruling – partly because of Trump’s status as a former president, Cannon said – that also prevented federal investigators from examining both the 11,000 documents and an additional 103 documents bearing classified markings.
That prompted the justice department to seek to reverse elements of Cannon’s ruling in order to regain access to the 103 documents, which the US court of appeals for the 11th circuit granted and the US supreme court last week upheld over Trump’s objections.
The conference call touched only on privilege disagreements concerning a small subset of the seized materials that remains, for now, in the special master’s purview. The justice department has since appealed the appointment of the special master in its entirety.
The dispute could foreshadow what could be a messy argument between Trump’s lawyers seeking to limit what documents can be used in the criminal inquiry, and the justice department, which is trying to keep as many records in play.
The Guardian has previously reported that Trump is seeking to withhold from federal prosecutors letters and signing sheets with the National Archives, among a number of documents that were scooped up by the FBI that appear germane to the criminal investigation.
On the call, Dearie specifically asked Trump’s lawyers to give him a better sense of how one document, for instance, could both be subject to executive privilege – a designation applying to presidential records – and simultaneously be a non-governmental, personal document.
“Unless I’m wrong, and I’ve been wrong before, there’s certainly an incongruity there,” Dearie said, appearing to cast doubt on the notion that a document could carry both characterizations.
The special master also asked Trump’s lawyers to provide more details on documents they asserted were protected by attorney-client privilege, as he suggested that some of the documents in question had been seen by a third party, which would make the communications no longer confidential.
Dearie also grew frustrated that the two sides were unable to resolve more disagreements among themselves, at one stage criticizing the government for not saying whether one of the documents, concerning the 2017 special counsel investigation, had been sent to the justice department.
The conference call, however, did resolve why Trump’s legal team had been told at one stage that there could be 200,000 pages to examine but the actual number was 21,792 pages: a company hired to digitize the seized materials for the special master review had overestimated the page count.
