Trump's Request For Independent Document Review Approved : The NPR Politics Podcast Judge Eileen Cannon, who was appointed by former President Trump, has handed the former president a big, if temporary, win. She says an independent arbiter or a special master should review the 11,000 pages of papers the FBI took from Mar-a-Lago last month. Now what?

This episode: White House correspondent Tamara Keith, senior political editor and correspondent Domenico Montanaro, and national justice correspondent Carrie Johnson.

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Trump's Request For Independent Document Review Approved

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ASHLEY LOPEZ, BYLINE: Hey there. It's Ashley Lopez from the NPR POLITICS PODCAST. You might have heard we're going back on the road. And Houston, we'll be heading your way very soon. Join me, Susan Davis, Asma Khalid, Tamara Keith and Domenico Montanaro at Zilkha Hall on Thursday, September 15. You can find more information about tickets, including student ones, at nprpresents.org. Thanks to our partners at Houston Public Media. We hope to see you there.

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UNIDENTIFIED PERSON: My husband and I are starting our annual, cross-country road trip from Ohio to Texas with our hundred pound, carsick-prone puppy.

TAMARA KEITH, HOST:

Ah.

UNIDENTIFIED PERSON: This podcast was recorded at...

KEITH: 11:32 a.m. on Tuesday, the 6 of September.

UNIDENTIFIED PERSON: Things may have changed by the time you hear this, but hopefully we'll be safely with family in Texas and no one has vomited in the car.

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UNIDENTIFIED PERSON: OK. Here's the show.

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CARRIE JOHNSON, BYLINE: Is there puppy Dramamine?

KEITH: You know what? I should know the answer to that, and I don't, but oh, well.

DOMENICO MONTANARO, BYLINE: Well, we know the NPR POLITICS PODCAST will soothe even the most savage beast, right?

JOHNSON: (Laughter).

KEITH: Hey there. It's the NPR POLITICS PODCAST. I'm Tamara Keith. I cover the White House.

MONTANARO: I'm Domenico Montanaro, senior political editor and correspondent.

JOHNSON: And I'm Carrie Johnson, national justice correspondent.

KEITH: A federal judge has ruled that former President Trump will get an independent review of material seized by the FBI at his Florida home. The judge has determined that a special master should be appointed to do that review. And in the meantime, prosecutors now have to stop using that material in their investigation until the work is done. Carrie, tell us about this decision and how the judge explained it.

JOHNSON: This judge, Aileen Cannon, who was actually appointed by former President Trump, talked about the need to ensure the appearance of fairness and integrity under these extraordinary circumstances - those circumstances being the FBI seizing 27 boxes of material from Mar-a-Lago, including material labeled top secret and higher. And this judge basically determined that there were risks of leaks as a result of this investigation and the FBI seizure of these papers. She talked about stigma and reputational damage to the former president, and she gave former President Trump a lot more credit than the Justice Department did for raising arguments about executive privilege. That is legal privilege that protects communications, confidential communications within the executive branch, even though Trump is no longer the president of the United States.

MONTANARO: And, Carrie, I mean, the judge really went farther on the idea of what's privileged (laughter) than I think a lot of us thought and certainly kind of goes beyond what most people would get, doesn't it?

JOHNSON: It absolutely does. So there were two arguments that Trump seemed to make here. One was that some of these materials could be subject to attorney-client privilege. That's the one we all know about. You're supposed to be able to talk freely with your lawyer and get legal advice. The other relates to executive privilege, and the Justice Department said Trump basically had no interest here. And the National Archives also determined that this was not a close call, that these papers belong to the federal government, the executive branch, and Trump was no longer in the executive branch.

But this judge said the Justice Department may have been going too far. She cited some language suggesting that Trump may have some interest in executive privilege even though he's no longer president. And she wanted the special master to review these papers. Legal experts say this is highly, highly unusual, and it could be the basis of a Justice Department appeal if prosecutors decide to appeal this ruling.

KEITH: So I know that the idea of leaks is bad and that that is a legitimate concern that the former president could have, that there could be leaks. I don't know that there have necessarily been. But how does that justify the need for a special master to go through these documents with a fine-toothed comb? And how would that even work?

JOHNSON: Yeah. The judge talked about potential reputational damage, Tam, but everybody who's been subject of a criminal investigation that's public has some reputational damage. It's not clear why the former president is different here in this respect. And remember, this FBI search of Mar-a-Lago in early August was authorized by a magistrate judge who found probable cause to believe that crimes were committed, crimes like obstruction of justice and willful retention of information related to the national defense. This does seem to be a situation where the former president is getting breaks in court that regular people might not get.

As for what the special master might do, we're going to have to wait and see what the mandate is exactly. But remember, there are something like 11,000 pages of documents that were seized by the FBI. The Justice Department already put a special team in place. It found only, like, 500 pages might be related to attorney-client privilege. The special master is going to go through all of that all over again, and the instructions with respect to executive privilege are going to be really important here because it's not at all clear what legal standards the special master should use to sift through these materials with that idea in mind.

MONTANARO: I mean, practically speaking, I mean, what's this going to mean? Is it going to slow the investigation down? I mean, any time lawyers (laughter) get involved - more court filings and all that - it certainly seems to slow things down. Is it going to hamper the Justice Department's investigation of Trump, for example?

JOHNSON: Yeah. There are so many questions here, Domenico, right? I mean, the DOJ review of these materials took two or three weeks. We haven't got a special master appointed yet, so it could be a month or longer. And what the judge has done in the meantime, which seems to be unprecedented, according to legal experts, is put a stop to the DOJ using these materials to advance its ongoing criminal investigation.

KEITH: Though in theory, if they are investigating obstruction of justice, some aspects of their investigation could proceed without actually having their hands on the documents, yeah?

JOHNSON: Potentially, yes. And in part, we've reported on the idea that Trump's lawyers, the people who signed these declarations about there being a diligent search at Mar-a-Lago, potentially being witnesses or more in this investigation - but the problem with the way the judge's order is worded is that the DOJ might have to prove at some point down the line that it did not rely on those specific papers in asking questions of witnesses or conducting business before the grand jury. And that's a hard thing for lawyers to draw a fence around.

KEITH: So one thing, though, that is proceeding, according to your reporting, is not the criminal investigation, but the intelligence investigation, the threat assessment.

JOHNSON: Right. The director of national intelligence is conducting a risk assessment to try to determine whether any of these papers at Mar-a-Lago, which is not an entirely secure place and is open to the public, whether any of those papers were seen by people or touched by people who shouldn't have seen or touched them. And the judge, Judge Cannon, says that she doesn't want that part of the investigation to stop. The challenge there is that the FBI is part of the intelligence community, so how are you going to wall off some of those people from this threat assessment investigation?

KEITH: Well, we are going to take a quick break. And when we get back, more on how the Justice Department and the former president are responding.

And we're back. And, Carrie, I do want to hear from you. How has the Justice Department responded? Are they planning to appeal? Do we have any idea?

JOHNSON: Last week, the DOJ suggested it might appeal if the judge determined that a special master was warranted. Right now they're reviewing the decision and considering the next steps, according to a spokesman, but no word yet on an appeal. And one of the challenges there is that any appeal would go to the 11th Circuit Court of Appeals, which has a lot of judges appointed by former President Donald Trump. So DOJ may be trying to evaluate the likelihood of success before that court and the idea of more delay in this important investigation, too.

KEITH: I realize this isn't a new thing, but the idea that, you know, there are Trump judges and there are Obama judges and there are districts where they are likely to have more successes is sort of an indication of the state of things as it comes to this branch of U.S. institutions.

JOHNSON: As we've talked about a lot before, former President Trump and his first White House counsel, Don McGahn, and Senator Mitch McConnell and others talk about judges, federal judges with lifetime appointments being one of their most important legacies. We see that nearly every day.

KEITH: And, Domenico, I want to turn to the former president. Over the weekend, he held a rally in Pennsylvania. In theory, it was to support the candidates he's endorsed for Senate and governor, but he also railed against the ongoing investigation.

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DONALD TRUMP: Americans are sick of the lies, sick of the hoaxes and scams and, above all, sick of the hypocrisy. But our opponents have badly miscalculated. This egregious abuse of the law is going to produce a backlash the likes of which nobody has ever seen before.

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MONTANARO: Look, this is par for the course for Trump. I mean, he's throwing more gasoline on top of this fire of anger that, you know, you could argue he's responsible for in large measure. You know, there's a solid base of his supporters will believe and latch on to anything he says. And we have seen political violence - obviously, January 6; obviously the, you know, attacker at an FBI facility in Ohio. I mean, this was an institution that most Americans had great reverence for before Trump decided to make them political opponents, essentially.

KEITH: And, Domenico, the former president did respond to the judge's decision. He put out a written statement today.

MONTANARO: He did. And, you know, he essentially starts off going after the media - says the fake news, mainstream-media Democrats and RINOs, Republicans in name only, are obsessed with pushing the latest witch hunt against me, he says. He says, all American patriots know that I always do everything by the book, which, of course, we know is not true. We know that he took (laughter) material outside of the White House to his home in Florida. But that's, you know - the line he tends to take is, you know, he'll take an attack that people have against him and turn it around on others.

JOHNSON: Not just that he took the material, Domenico, but that he took it, he wouldn't give the rest back, he gave some more back, he got a subpoena, he said through his attorneys that they had conducted a diligent search and they had returned everything, and then the FBI found even more stuff in August. This is what Bill Barr was talking about when he told Fox News it seemed like the former president was jerking around the FBI and the Justice Department. This wasn't just taking stuff; it was refusing to return it after being asked nicely and being given a legal demand to do so.

MONTANARO: Yeah. And you could argue that had he done that, had he just returned the information that they wanted, we wouldn't be in this situation, wouldn't even be taping this podcast and be off talking about something else.

JOHNSON: Exactly.

KEITH: So, Carrie, as we close out this podcast, I do want to get a sense of the timeline here. What happens next? How long could this take?

JOHNSON: The judge has ordered both sides to confer - that means the Justice Department and lawyers for former President Trump - and to present her with a list of people who might be candidates to become the special master by Friday. And then she's going to think about that for a while. The DOJ has said it needs to be somebody with a top secret security clearance because some of these materials are so sensitive. But it also may need to be somebody who's viewed as beyond politics. And that's going to be a hard person to pick for sure.

KEITH: All right. Let's leave it there for today. I'm Tamara Keith. I cover the White House.

MONTANARO: I'm Domenico Montanaro, senior political editor and correspondent.

JOHNSON: And I'm Carrie Johnson. I cover the Justice Department.

KEITH: And thank you for listening to the NPR POLITICS PODCAST.

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