Here’s a look at what was said in revealing moments from the 90-minute hearing, according to a transcript obtained by CNN:
Trump’s lawyer calls for ‘turning down the heat on both sides’
Early in the hearing, Trump’s lawyer, Chris Keyes, told the judge that this was an “unprecedented situation” and that there was a need to “turn the temperature down on both sides.”
“What we’re talking about here, primarily, are presidential records in the hands of the 45th President of the United States in a location that was frequently used, during his time as President, to conduct official business,” Kise said.
“This is not some Department of Defense employee putting military secrets in a paper bag and sneaking out in the middle of the night,” he added. “These are, as I say, presidential records in the hands of the 45th President of the United States.”
Trump lawyer: Records dispute ‘an overdue library book script’
Later in the hearing, James Trusty, another Trump lawyer, argued that there was no basis for the Justice Department to launch a criminal investigation into the mishandling of documents at Mar-a-Lago.
“So we’re in a situation where, literally, they’ve gotten — we’ve referred to it at times as ‘an overdue library book scenario’ where there’s a disagreement — not even a disagreement, ongoing negotiations with NARA about records that suddenly turned into a criminal investigation Trustee said.
Trusty went on to say that because the situation was, in his view, a political dispute over presidential records, and there should not have been a criminal investigation, FBI agents “never had the right to walk through the doors and to confiscate any of these items”. from Mar-a-Lago.
Justice Department: Trump is no longer president
Justice Department lawyer Jay Bratt tried to outline what legal test the judge would have to apply as he weighed Trump’s request, as Bratt argued Trump had not met it. Under the legal test, known as Rule 41(g), Trump would have to prove he had an “ownership interest” in the property in question, Bratt said, and described “the presidential records that the 45th President recorded. “
“He’s no longer president, and because he’s no longer president, he had no right to get those documents,” Bratt said.
“He was unlawfully in possession of them, and because he has no vested interest in those records, that ends the analysis under section 41(g).”
Judge says ‘there has never been a seizure of this magnitude of a former president’
Arguing for the government, DOJ attorney Julie Edelstein explained to the judge why appointing a special master was not a “modest” step, as Trump’s team suggested.
Edelstein: “On executive privilege issues, it wouldn’t be modest, it would be unprecedented.”
Cannon: “Why is that?”
Edelstein: “There’s no role for an executive privilege expert to play, and that’s why it hasn’t been done in the past.
Cannon: “Isn’t it also because there’s never been a seizure of this magnitude of a former president?”
The Trump team disputes that documents marked classified were, in fact, classified
The judge asked Trump’s lawyers if they claimed any privilege other than attorney-client privilege.
“Well, we’re not admitting the fact of classification, I’m going to have to make that one hundred percent clear as to whether any of this stuff remains classified,” Trustee said.
With some prodding from the judge, he argued that they were “playing executive privilege.”
Trustee pushed back at the hearing for a second time on the idea that the documents were classified when asked why Trump was eager to challenge what was seized later in the process.
“The Court will probably recognize — I’m not asking for an opinion — that the warrant itself allows not only the collection of documents around their seizure of classified material, which again we question whether it’s classified or whether they’re entitled to seize or whether it’s in the right example, but boxes in the vicinity, documents in the area,” he said.
On why a master specialist is or is not necessary
The judge asks several times what an expert gentleman would do As Trusty described the appointment of a special master as “a very modest step”, Cannon asked him for some clarity on what that third party would do. “Do what exactly?” asked the judge. A master teacher, Trusty said, “would not just deal with attorney-client and work product issues and resolve them or at least recommend solutions to them, but deal with the overarching paradigm here that actually matters that they’re trying to criminalize . Judicially unenforceable law on Presidential Records”. Later, the judge again asked what exactly the expert was supposed to do, as the Trustee referred to the need for the independent actor to “assess things”. “And finally, when you say ‘assess things,’ in the most precise way, what do you envision and think the master specialist actually does in relation to document review in general?” asked. Cannon asks DOJ ‘what’s wrong’ with appointing special master? “Finally, what’s the harm in appointing a special master to settle these matters without delay of appeal, do regular, receive these materials, receive claims of privilege and do it, giving both sides a full opportunity?” Cannon asked Edelstein. “I guess what I’m wondering from the government, you know, is what is your articulation of harm other than the general concern that it would delay a criminal investigation?” continued the judge. Edelstein responded: “First of all, these are very reasonable concerns; and, at the outset, even if there were an appropriate declaration of executive privilege, there is no question that executive privilege is a qualified privilege.” Edelstein described “multiple, very important legitimate interests.” “One is the criminal investigation, and in the context of Nixon v. United States, that is clearly recognized as a very important interest, even if the material had to be provided outside the Executive Branch, which here does not show how [limited] the invasion is,” he said. “It would be unprecedented for the executive to be able to successfully assert privilege against the executive branch.” Judge questions why Trump waited two weeks to ask for a special master Cannon pressed Trump’s lawyers for waiting until two weeks after the Mar-a-Lago investigation to file their lawsuit seeking a “special master.” “Not to alienate the Court on this matter, some of that I don’t think I can disclose,” Trustee said. “As with any kind of decision about the timing of the deposition, the nature of the deposition, some of that will fall, unfortunately from the position I’m in right now, into a category that I don’t feel comfortable sharing in open court. I was also saying more substantively, we were trying to get in touch with the US Attorney’s Office.” He continued: “We had multiple communications early on. We asked them what their position would be on a special master. We were hopeful that there would be some transparency that would really allow us to assess what was seized, how it was seized, what was the basis of the affidavit and then we wouldn’t have had to get to that point involving the Court. So there was some time.” The Justice Department responded that Trump requested a special master only once, the day after the investigation. DOJ attorney Bratt also said he was reluctant to get into the department’s conversations with Trump’s lawyers. But because the notices were on the record, he said “I would say the morning after the investigation, which is 13 days before the motion was filed, we denied their request for a special master.” “There has been no subsequent reiteration of this request to us,” he said. The DOJ says it cast a wide net with its filter team A member of the DOJ’s filter team — the group of agents separate from those involved in the investigation tasked with reviewing and separating any privileged evidence — described the process to Cannon. Benjamin Hawk, a member of the filter group, first reported on the status report from the filter group that was filed under seal this week. (That was separate from the investigative team’s status report, and the judge chose not to order his release after a Trump lawyer asked that it remain sealed.) “I want to make it clear that the filter team agents applied a very broad and expansive criterion and standard for attorney-client privilege, as every document they saw that appeared to be legal in nature contained the attorney’s name — or readily identifiable lawyer name, they were immediately separated and recognized as potentially privileged,” Hoke said. While the FBI’s affidavit filed in court to obtain the warrant outlined plans to search Trump’s office by the filter team, rather than the investigative team — the filter team also did an initial review of the storage area before case agents, he added. “And by finding items that appear, again applying an extremely broad view of the attorney-client privilege to be overly broad and cautious given the circumstances of the investigation, when they found something that was legal or contained an easily recognizable attorney’s name, then — that, for example, it was in a box mixed with evidence that matched attachment B, they sealed that box, marked it as potentially privileged, and the filter agents retained custody and control and separated that…
