(In Sept 1 story, corrects paragraphs 19-20 to show that quote reflects the words of Trump lawyer Trusty, not Trump lawyer Kise)
By Francisco Alvarado and Sarah N. Lynch
WEST PALM BEACH, Fla. (Reuters) -A federal judge on Thursday appeared sympathetic to former President Donald Trump's request to appoint a special master to review the documents the FBI seized from his home in August, though she declined to issue a ruling immediately on the matter.
At a hearing in West Palm Beach, U.S. District Judge Aileen Cannon pressed the Justice Department on why it opposes the appointment of a special master – an independent third party sometimes appointed by a court in sensitive cases to review materials potentially covered by attorney-client privilege to ensure investigators do not improperly view them.
“Ultimately, what is the harm of appointing a special master to review these materials?” asked Cannon, a Trump appointee. “What I'm wondering from the government – what is the harm beyond delaying the investigation?”
She also suggested that she could feasibly carve out an exception which would permit U.S. intelligence officials to continue conducting their national security damage assessment pending the appointment of the special master before the criminal probe can continue.
“Would your position change if the special master were allowed to proceed without affecting the [Office of the Director of National Intelligence] review for intelligence purposes, but pausing any use of the documents in a criminal investigation?” she asked federal prosecutors.
“It would not change,” said Julie Edelstein, the department's deputy head of counterintelligence. “There is no role for the special master.”
Thursday's hearing came less than two days after prosecutors laid out fresh details about their ongoing criminal investigation into whether Trump illegally retained government records and sought to obstruct the government's probe by concealing some of them from the FBI.
In their filing, prosecutors revealed that Trump's representatives falsely certified that a thorough search had been conducted and all government records had been returned to the government.
The certification was made on June 3, when three FBI agents and a top Justice Department official traveled to Mar-a-Lago following the issuance of a grand jury subpoena to retrieve all remaining records.
During that visit, prosecutors said Trump's lawyers never claimed he had declassified any of the materials, and they handed over 38 pages marked as classified inside a double-taped envelope.
However, his attorney at the same time also prohibited government investigators from opening or looking inside some of the boxes that Trump kept inside one of his storage rooms, they said.
The department ultimately decided to seek court approval for a search warrant, after the FBI developed evidence of possible obstruction.
“The government developed evidence that a search limited to the storage room would not have uncovered all the classified documents at the premises,” prosecutors said.
“The government also developed evidence that government records were likely concealed and removed from the storage room and that efforts were likely taken to obstruct the government's investigation.”
The FBI ultimately searched Trump's home on Aug. 8, and recovered more than 33 boxes and other items, including more than 100 pages marked as classified.
Cannon said on Thursday she would unseal a more detailed inventory of the property the FBI seized from Trump's home following its unprecedented search, after media outlets filed a motion with the court to make it public.
Trump's newest attorney, former Florida Solicitor General Chris Kise, made his first appearance in the case on Thursday and presented some of Trump's arguments to the judge.
On Thursday, Kise and Trump's other attorney James Trusty told Cannon that the former president wants to protect materials that were subject to a legal doctrine known as executive privilege, which can shield some presidential communications.
“The problem is, we haven't had access to the actual materials,” Trusty told her.
But the Justice Department has argued that such a claim is illogical, and that no special master is needed in the case.
“He is no longer the president,” said Jay Bratt, the department's head of counterintelligence.
“And because he is no longer president, he did not have a right to take those documents. He was unlawfully in possession of them.”
Typically, a special master is appointed in cases involving the searches of the homes or offices of attorneys, where some of the materials could be covered by attorney-client privilege.
A special master was appointed, for instance, after the FBI searched the homes and offices of Trump's former lawyers Rudy Giuliani and Michael Cohen.
But some legal experts, along with the Justice Department, have argued a special master makes no sense here because a former president cannot shield executive branch records from the executive branch itself, as Trump is attempting.
In addition, Trump waited so long to make his request that the department's filter team, a group of agents who are not part of the investigation, have already reviewed the materials, and determined only a limited number may be covered by attorney-client privilege.
At Thursday's hearing, Edelstein told Cannon that any ruling to appoint a special master would be unprecedented, noting it has never been used in this way.
“Well, there has never been a seizure of this magnitude with a former president,” Cannon replied. “I am not sure it is as cut and dry as you suggest.”
(Reporting by Francisco Alvarado in West Palm Beach, Fla., and Sarah N. Lynch in Washington; Editing by Chizu Nomiyama, Matthew Lewis and Richard Pullin)