- The Washington Times
Thursday, September 15, 2022

A New York federal judge was appointed Thursday to serve as an independent arbitrator to decide if materials seized in the FBI’s search of President Trump’s home should be returned to him, a move that rejects the Justice Department‘s request to proceed with its investigation.

Senior Judge Raymond Dearie will serve as special master to referee the fight over the materials seized by the Justice Department and Mr. Trump, who claims the materials are protected by attorney client privilege.

U.S. District Judge Aileen Cannon, who appointed Judge Dearie, thus denied the Justice Department’s effort to resume its criminal investigation into whether Mr. Trump mishandled classified documents. Investigators’ review of the material had been temporarily halted by Judge Cannon until the special master has a chance to decide if any of the items should be barred from use by investigations in the criminal probe. 

Under Judge Cannon’s decision, Judge Dearie will have until Nov. 30 to review the Trump documents.

Judge Cannon’s denial sets up a Justice Department appeal of her earlier decision, which will be heard by the U.S. Court of Appeals for the 11th Circuit 11th Circuit in Atlanta.

A Justice Department spokesperson did not immediately respond to a request for comment.  

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In her Thursday decision, Judge Cannon said the government did not suggest “any identifiable emergency or imminent disclosure of classified information arising from plaintiff’s allegedly unlawful retention of the seized property.”

Judge Cannon, who was appointed by Mr. Trump, also disputed that the review of classified materials to assess if any damage was caused by their alleged mishandling would stymie the criminal investigation into the former president.

She said the order does not prohibit the government from conducting its investigation, questioning witnesses, or bringing charges based on anything other than the seized materials.

Mr. Trump’s legal team last month asked Judge Cannon to appoint a special master to review the records seized in the Aug. 8 raid and return any materials that may be covered by executive privilege or attorney-client privilege.

The Justice Department fought the appointment of a special master, arguing that it had already done its own review and Mr. Trump couldn’t raise executive privilege claims that ordinarily permit a president to withhold information, because he was no longer commander-in-chief.

Judge Cannon sided with Mr. Trump and ordered both sides to name a candidate for the role. The Trump team put forth two candidates, including Judge Dearie, while the Justice Department suggested three potential special masters.

Judge Dearie was the only candidate both sides had agreed upon. The deadline of Nov. 30 to finish his review of the Trump documents will significantly slow down the investigation, unless the 11th Circuit quickly weighs in.

Judge Dearie serves on the U.S. District Court for the Eastern District of Brooklyn, where he has taken senior status, meaning he still works, but his caseload is significantly less than other judges.

He was appointed to the bench by President Reagan in 1986 and served as the chief judge of the Brooklyn federal court. He also served a seven-year term, which concluded in 2019, on the U.S. Foreign Intelligence Surveillance Court, which approves the domestic wiretapping of those deemed threats to America.

While on the FISA court, Judge Dearie was one of the judges who approved the Justice Department’s application to surveil former Trump campaign figure Carter Page as part of its probe into Russia’s interference in the 2016 election.

Mr. Trump has frequently railed against the FISA court for approving the Page warrant. However, in an earlier court filing, his lawyers touted Judge Dearie‘s experience in dealing with classified materials cases.

• Jeff Mordock can be reached at jmordock@washingtontimes.com.

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