The Department of Justice says FBI agents seized numerous boxes containing potentially privileged records belonging to former President Donald Trump during the raid of Mar-a-Lago, arguing those documents were then separated from the bureau’s criminal investigators.
The revelation was contained within a newly unsealed late August filing by the DOJ following a Monday court order from Aileen Cannon, the Florida judge overseeing much of the case. The DOJ filing made a distinction between the case team investigating Trump and the privilege review team filtering out records that might be subject to attorney-client privilege or other privilege claims made by the former president.
Among the list of potentially privileged records seized by the FBI were a brief message from an attorney named “Rudy,” although the DOJ did not directly say this was Trump personal lawyer and former New York City mayor Rudy Giuliani, and a document referencing former Trump White House counsel Pat Cipollone, along with dozens of pages of what the DOJ said appeared to be a list of Trump’s phone calls.
The FBI previously said it seized more than 11,000 records from Mar-a-Lago during the bureau’s unprecedented Aug. 8 raid, including roughly 100 documents with classification markings.
Unsealed court filings revealed Trump is being investigated under the Espionage Act and laws regarding obstruction of justice. Trump has denied any wrongdoing. The DOJ wants an appeals court to throw out Cannon’s appointment of a special master.
“The Privilege Review Team identified 64 sets of materials (consisting of approximately 520 pages) warranting further consideration,” the unsealed Aug. 30 filing, signed by U.S. Attorney Juan Antonio Gonzalez and Anthony Lacosta, managing assistant U.S. attorney, contended to the court, adding, “The Privilege Review Team agents also treated any legal documents as potentially privileged. These materials were sealed, segregated, and identified as potentially privileged without regard to the substance or confidentiality of the communication.”
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Ultimately, after review, the DOJ cited a yet-sealed “Exhibit A” and said the privilege review team “determined that the 21 sets of materials identified in Exhibit A are primarily government records, public documents, and communications to or from third parties,” and, “as such, virtually none of those materials appears to be privileged attorney-client communications or protected under the attorney work product doctrine.”
The DOJ also pointed to “two closer calls.” One involved “communications to a White House government email account,” while the other was “a brief message from a possible attorney (‘Rudy’) that does not appear, on its face, to be related to legal advice.” The DOJ did not specifically say that this was a reference to Giuliani.
The DOJ also said privilege review team agents “identified and segregated” a printed email exchange between the U.S. Air Force Academy’s head baseball coach and the White House because “Pat C,” which the DOJ said was “perhaps a reference to White House Counsel Pat Cipollone,” had been written on it with a black marker.
The DOJ said the privilege review team had initially “marked and sealed” six boxes of evidence as potentially privileged at the end of the Mar-a-Lago search, with one box containing “the entire contents of a single drawer in the 45 Office” at the Florida resort where nonprivileged and relevant documents had also been located, as well as five boxes from the Mar-a-Lago storage room “containing potentially privileged documents comingled with non-privileged, responsive materials.”
Those boxes were transferred to the Washington Field Office on Aug. 9.
The DOJ said the six sealed boxes remained separated from the case team in a secure room and that an additional seventh box was transferred to the control of the privilege team on Aug. 10, when a case agent “observed a document on Morgan Lewis letterhead commingled with newspapers.” The DOJ said the case team stopped its review of that box when that document was spotted.
The DOJ said the privilege review team completed their review of the seven boxes by Aug. 11, during which time the agents “reviewed each box’s contents and separated any potentially privileged materials from the balance of the documents that were not privileged and conveyed the non-privileged documents to the case team.”
Prosecutors further revealed that on Aug. 25, a case team attorney provided the privilege team with “a 39-page set of materials that appears to reflect the former President’s calls.” The DOJ said the majority of the pages were titled “The President’s Calls” and include the U.S. presidential seal.
“Specifically, the document contains handwritten names, numbers, and notes that primarily appear to be messages, as well as several pages of miscellaneous notes,” the DOJ told the court. “After the Case Team attorney observed notes next to names, the attorney stopped reviewing the set of materials and asked the Privilege Review Team attorneys to review it. The Privilege Review Team attorneys reviewed this set of materials and added it to the group of potentially privileged materials.”
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The DOJ contended in the late August filing that “before disclosing the materials identified in Exhibit A to the Case Team, however, and consistent with the search procedures … the Privilege Review Team is prepared to disclose a Bates-stamped copy of the Exhibit A materials to Plaintiff’s counsel, so that Plaintiff and his attorneys may review the materials and, if appropriate, assert the attorney-client privilege through a particularized privilege log.”
Trump and some of his allies have claimed in public that the former president declassified the documents at his Florida resort home, but those declassification arguments have not made it into Trump’s court filings. The former president’s lawyers have said their arguments about declassification might need to be used as legal defenses in the event of a possible indictment from the DOJ.
The ability of the FBI to use the records seized from Mar-a-Lago in its criminal investigation was paused by Cannon when Judge Raymond Dearie was appointed special master last month, but that ruling was overturned by an appeals court shortly thereafter at the insistence of the DOJ.
