Judge names special master who will review classified documents seized from Mar-a-Lago

Judy Woodruff:

A federal judge has rejected the Justice Department's access to classified documents seized by the FBI in last month's search of former President Trump's Mar-a-Lago home.

The judge has also appointed a veteran New York jurist to serve as a special master, who will independently review the classified records.

To help us understand what this means for the investigation into the former president, I'm joined by University of Michigan law professor and former U.S. attorney Barbara McQuade.

Barbara McQuade, welcome back to the "NewsHour."

So, what is known about this jurist who's been appointed as special master by the judge?

Barbara McQuade, Former U.S. Attorney:

Well, he's really got a very good reputation.

I think he's a fine judge. He is a longtime judge on the Eastern District of New York in Brooklyn. He previously served as U.S. attorney there, an appointee of Ronald Reagan, and also served on the FISA Court, the Foreign Intelligence Surveillance Court. And that's important, because that signals that he has experience dealing with classified documents.

So that part of the order is great. But the problem with, Judy, is, it's as if saying, guess what, you have got a world-class surgeon who's going to remove your appendix. Isn't that great? Except you say, but I don't need my appendix removed.

(LAUGHTER)

Judy Woodruff:

And we should say — I should have said the name. It's Judge Raymond Dearie, who, as you say, was an — appointed to the bench by former President Trump. He's now retired, but still active in ways in the judiciary.

What will his job be exactly?

Barbara McQuade:

Well, it's not exactly clear, but he has issued his first letter to the parties today, asking them to appear on Tuesday, which is a good sign that he's moving quickly.

And he asked them to set the agenda as to what he should be looking at. I think this is actually a good move on his part and an opportunity for the Justice Department to perhaps narrow the areas of disagreement. Of course, what the Justice Department really wants so urgently is an opportunity to fully review those 100 or so classified documents, so that they can ensure that there is no damage to our intelligence community, sources whose lives might be in danger or methods of collection that have been compromised.

And so it's an opportunity for them to get that right at the top of the list.

Judy Woodruff:

So, what — remind us, what are the arguments then that the judge who made this decision to get a special master involved, what are the arguments that she's then making in her ruling that — in disagreement with the Department of Justice?

Barbara McQuade:

Well, she says a couple of things that the Justice Department disagrees with.

And I have to say, I think the Justice Department has the stronger argument here. One is that she argues that Donald Trump has potentially a possessory interest in some of these documents that were seized. The Justice Department says, no, if they're presidential records, they belong to the United States government. The Presidential Records Act says so.

To the extent they are classified, these belong to the government. And she says something that I thought was rather shocking in it. She said, the mere fact that they say classified does not mean that they are classified.

That is, I think, a real breach of the separation of powers, because it is the Justice Department, the executive branch, part of really one of their core responsibilities, to say what is and isn't classified.

The other area of dispute is whether Donald Trump has any executive privilege over any of these documents. Again, this does not seem like a viable argument, the idea that he would exert executive privilege against the very executive branch that owns it. And so those areas of dispute may force the Justice Department to file an appeal here. They said earlier that they would at least as to this stay, because they're always thinking not only about this case, but about institutionally protecting other cases that may come down the road.

Judy Woodruff:

And that's what I wanted to ask you about.

When the Justice Department says, we need this — we need to look at this information, we need to continue our work and do it now, we need — we can't wait, why? What is the reason that they give for needing to do it as soon as possible?

Barbara McQuade:

Well, what they want to do quickly is to assess any damage that's been done to the intelligence community.

So, if, for example, there is a source of information who is stationed in a hostile foreign government whose identity has been compromised, that person's life could be in danger. Or if there's a method of collection, some technological surveillance method that is not publicly known yet, if that should become discovered, it could either dry up that source of information, or it could even be used as a channel to push disinformation if people found out about that.

So that's a very urgent challenge. Now, the judge did say you can go ahead and do that part of the investigation, but you can't use these documents for your criminal investigation. And what the Justice Department has said is, they're really inextricably intertwined. They even got an affidavit from the director of the Counterintelligence Division saying so, that you need to interview people to say, who had access to these documents at Mar-a-Lago? Do you know why there may be empty folders there, and what happened to the contents of those things?

That's all part of the damage assessment, but it's also part of the criminal investigation. And the worst thing that could happen here, Judy, is that the Justice Department, in its effort to protect the integrity of the intelligence, does something that runs afoul of her order, because then they become tainted, and anything that happens down the road in this case could be a basis for reversal of a conviction.

So they really want some clarity, I think, up front about what they're allowed to do and not allowed to do. And they don't want their hands tied, so that they can conduct this intelligence assessment.

Judy Woodruff:

So many strands of the story. And, as you say, we are waiting to see tonight, in fact, whether there is this appeal by Justice.

This story will definitely continue. And, as you said, the special master will hold a hearing on Monday.

Barbara McQuade, thank you.

Barbara McQuade:

Thank you.