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A judge appoints a special master to review materials seized from Mar-a-Lago

STEVE INSKEEP, HOST:

A federal judge says, no, she will not reconsider a ruling that sided with former President Trump. Judge Aileen Cannon appointed a special master to look over government documents recovered from Trump's residence. She declined to accept the government's assertion that the many papers marked classified are classified. Instead, an arbiter who was proposed by Trump will decide on the status of the documents and report back to the judge who was appointed by Trump. Let's get some analysis from Brandon Van Grack, a former Justice Department prosecutor. Welcome back.

BRANDON VAN GRACK: Thank you. Good morning.

INSKEEP: There are many ways to read this ruling by the judge, but one is just this - I'm not going to accept whatever the government says to me about these documents. Let's get an independent review, which sounds reasonable. Is it?

VAN GRACK: It does sound reasonable, which is, by the way, the reason I think the Justice Department ultimately will have a limited appeal of this decision. But it raises - especially with respect to these 100 classified documents - concerns about the separation of powers between the judicial branch and the executive branch, and I think has real implications in terms of the Justice Department and FBI's ability to protect national security information.

INSKEEP: When you say separation of powers, you're - are you asserting that the Justice Department - rather, that the United States government, the administration, I should say, should be able to assert what is classified and what is not, and the judge should not be weighing in on this?

VAN GRACK: That is part of it. And the judge challenges the Department of Justice's and FBI's representation about what these documents are. But even more fundamental than that, this process right now before the court is not determining the merits of the case or even the merits of this search warrant. The only issue before the judge is, does the Department of Justice - can the Department of Justice and the FBI have access to this information for their investigation? And the judge has now ordered for this classified information - that it must be provided to these third parties, to the former president's attorneys, and to a special master.

But what that means is that the judge is saying that in order for the government, the executive branch, to get its documents back - the executive branch, the president, has absolute authority over classified information. It derives from the president's authority as commander in chief. The Supreme Court has said as much. And so this order says, in order for the government to get that information back, a third party, this other party, gets to weigh in on that. And I think the Department of Justice is going to have real concerns about that infringing on the executive branch and the president's national security.

INSKEEP: Does this ruling mean there's a period where Trump's lawyers can look at the classified information, but the United States government cannot look at the classified information?

VAN GRACK: Well, the government will still have it, but this order unmistakably says that these 100 documents, these classified documents, which - some of which are so highly classified that the Department of Justice's own national security attorneys didn't even have the requisite clearances - that those documents would be provided to the former president's attorneys for review.

INSKEEP: There will be a delay here. The judge says the special master has until November 30. I want to pause to note the political effect of that. Trump supporters have asserted that this search has all been all about the November election. It will now be punted till after the November election, so we can set the politics aside. What are the legal effects of a delay until November 30?

VAN GRACK: Well, I would go even beyond the legal effects to the national security effects, 'cause November 30 is not the actual date. That's when the judge has ordered the special master to conclude his review. But ultimately, the judge has ordered that whatever the special master determines can be appealed to her. I don't know if that means sort of she can start anew and on her own determine ultimately or challenge the decisions of the special master. And ultimately, that decision can then be appealed to an appellate court. And so it's not November 30. It is well into 2023, which means the government's - the Justice Department's ability to determine who had access to this information, unauthorized access, and also do they have everything? There are 48 folders that - empty folders that had classified banners, and the Department of Justice in its filing indicates it doesn't know what was in those folders, and the ability to determine that is now delayed and impaired into 2023.

INSKEEP: Brandon Van Grack is a former federal prosecutor. Thanks so much.

VAN GRACK: My pleasure. Transcript provided by NPR, Copyright NPR.