In its raid last Monday on Donald Trump’s property at Mar-a-Lago, Florida, the Department of Justice (DOJ) reportedly took materials that included attorney-client privileged communications.
The allegation, announced by Fox News, raises fresh concerns about the DOJ’s methods and whether it would be able to use any of the confiscated information in a hypothetical prosecution of the former commander-in-chief.
The Department of Justice is trying to block the appointment of a “special master,” which is a judicial official who would undertake an independent examination and determine which documents may be given to the government and which must be returned to Donald Trump and his attorneys.
Fox News reported:
“During its raid of former President Trump’s Mar-a-Lago home, the FBI took boxes containing records that are protected by attorney-client privilege and possibly executive privilege, according to sources familiar with the investigation. According to Fox News, the Justice Dept. opposed Trump attorneys’ request for the appointment of a special master to examine the documents.”
“According to sources familiar with the inquiry, the former president’s staff was told that boxes labeled A-14, A-43, A-26, A-13, and A-33 all contained information that is covered by attorney-client privileges.”
“The FBI removed classified documents from Donald Trump’s Palm Beach home during its unusual Monday morning search, among them some that were labeled top secret. But Trump is contending that the information has been declassified.”
The attorney-client privilege, which is safeguarded by the Sixth Amendment’s right to counsel guarantee, protects almost all communications between a client and his or her lawyer from being disclosed.
The only times when the attorney-client privilege does not apply are when a client confides in him or her with the express purpose of committing a future crime, or if the attorney is participating in a joint criminal or fraudulent endeavor with the client. The privilege still applies to confessions of past misdeeds.
In 2018, the FBI obtained documents from Michael Cohen’s apartment and office as part of a probe into his business dealings. A special master ruled that almost two-thirds of the materials relating to communications between Cohen and Trump were covered by attorney-client privilege and could not be used by the DOJ.
A federal court last year ordered the appointment of an Independent, special master after the DOJ had seized journalist James O’Keefe’s phone. Shortly after the seizure of O’Keefe’s phone in a raid connected to Ashley Biden’s diary, The New York Times began publishing legal documents between O’Keefe and his attorneys, raising suspicions of leaks.
The appointment of an independent, special master after the Mar-a-Lago raid, according to legal expert Jonathan Turley, appeared reasonable given that the search warrant was broad scope: “The request for a special master would appear to be reasonable, especially since the warrant has such extensive language. It is difficult to imagine what information could not be obtained under this warrant.”
Speculation has grown that the real aim of the raid for Trump documents was to look for material tying him to the January 6 Capitol riot, for which Democrats have requested he be charged with a crime.