The special master overseeing the investigation into the Mar-a-Lago documents gave former President Donald Trump’s lawyers an out-of-court settlement with the FBI. Seeded evidence on the property during their search last month.
Judge Raymond Tieri, Court-appointed Special Master, A Filed Thursday Trump’s team is required to submit an affidavit if they believe the Justice Department included any items not actually seized during the search in the “consignment” of items taken from Mar-a-Lago.
In the declaration, “Plaintiff asserts that any of the specific items listed in the detailed property inventory were not seized from the premises on August 8, 2022,” Thierry wrote in the order.
It has become an issue in the case since Trump, some of his lawyers and several of his outside Republican allies have publicly said the FBI planted evidence at Mar-a-Lago during the Aug. 8 search.
However, they have not presented any evidence to support these allegations.
The new order from Deary on Thursday came two days after he held his first in-person hearing with Trump’s lawyers and federal prosecutors, and it outlines his plan for how the special primary review will move forward.
On Wednesday night, Trump planted evidence during an FBI search. He asked Fox News’ Sean Hannity, “Did they put anything in those piles” of items taken from Mar-a-Lago “or did they later?” he asked.
“No, I don’t think so,” Trump said when asked by Hannity if there was a video of that.
The judge set a September 30 deadline for Trump’s lawyers to submit the affidavit. He asked the judiciary to submit declarations attesting to key facts related to the search.
The FBI has previously declined to comment on allegations of impropriety during its search. Asked by a reporter last month whether federal agents might have planted evidence, FBI Director Christopher Wray said, “It’s not something I can talk about, so I’m sure you’ll appreciate that I’ll refer you to the (Justice) Department.”
Thursday’s order left Deary open the door to holding a hearing in which “witnesses with knowledge of the relevant facts” would be called to testify about the Mar-a-Lago search and items seized.
If it does, it could be a moment of impasse or cover-up for the Trump side, which has made a variety of statements about government wrongdoing outside of court but has been more restrained in court. Knowingly lying is a crime.
The Justice Department must provide Trump’s lawyers with “copies of all seized material” — except classified — by Monday. This is required so the Trumps’ side can identify what was taken from Mar-a-Lago and determine which items they believe should be protected under attorney-client or administrative privilege.
Trump’s team has an Oct. 14 deadline to finish reviewing all documents for potential privilege designations, though they may have to send a “rolling” batch of their designations. Deary ordered both sides to complete their reviews and send him their final names by October 21.
The judge also signaled that some documents may be under executive privilege but can still be reviewed by the Justice Department, which is part of the executive branch. That would be a more nuanced view than what Trump’s team has offered — one that essentially means federal prosecutors shouldn’t be allowed to see these privileged documents or use them as part of an investigation.
Deary also raised the possibility of sending some of the proceedings back to Magistrate Judge Bruce Reinhart, who authorized the search warrant after finding probable cause that multiple crimes were taking place at Mar-a-Lago. The judge has been the target of death threats and online vitriol from Trump supporters, and Trump has made several false claims about him publicly.
Dearie has also hired a retired federal judge from the Eastern District of New York to help with his review.
Deary said the judge, James Orenstein, has experience in “complex case management, privilege review, warrant procedures” and other related topics, and currently holds a top-secret security clearance.
A bio page for the law firm where Orenstein previously worked says he served on the “prosecution team in the Oklahoma City bombing trials.” Attorney General Merrick Garland played a leading role in the Oklahoma City investigation during his career.
Deary said that since he is currently on the US government payroll as a federal judge, he will not seek any additional compensation for serving as a special master. But he proposed that Orenstein be paid $500 an hour, which would have been covered by Trump based on an earlier court ruling in the case.
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