The special master reviewing the records suggested on Tuesday that Donald Trump‘s assertions of executive and attorney-client privilege over certain documents seized from his Mar-a-Lago resort appeared to lack sufficient evidence for him to rule in the former US president’s favor.
During a conference call in the case, the special master, senior US District Court Judge Raymond Dearie, complained that the log of documents Trump is attempting to withhold from the Justice Department did not provide enough information about the validity of the privilege claims.
Dearie pressed Trump’s lawyers to explain why they thought the documents should be excluded from the Justice Department’s criminal investigation into possible willful retention of national defense information, removal of government records, and obstruction of justice.
“It’s a little perplexing as I go through the log,” Dearie said. “What’s the expression – ‘Where’s the beef?’ I need some beef.”
The conference call discussion was the latest development in the ongoing investigation into whether any of the 11,000 documents seized from Mar-a-Lago without classified markings are legally privileged and cannot be used by prosecutors in the criminal investigation.
Trump requested the appointment of a special master and argued to Trump appointee US District Court Judge Aileen Cannon in Florida that the Justice Department should not decide whether some of the documents were potentially protected by the executive or attorney-client privilege.
The request was granted in an unprecedented ruling – partly because of Trump’s status as a former president, according to Cannon – that also barred federal investigators from examining the 11,000 documents as well as an additional 103 classified documents.
The Justice Department then sought to overturn portions of Cannon’s ruling in order to regain access to the 103 documents, which the US Court of Appeals for the 11th Circuit granted and the US Supreme Court upheld last week over Trump’s objections.
The conference call only addressed privilege disagreements regarding a small subset of the seized materials, which remain under the special master’s jurisdiction for the time being. The Justice Department has since appealed the special master’s appointment in its entirety.
The disagreement could foreshadow a messy fight between Trump’s lawyers, who want to limit what documents can be used in the criminal investigation, and the Justice Department, which wants to keep as many records as possible in play.
“Unless I’m wrong, and I’ve been wrong before, there’s certainly an incongruity there,” Dearie said, appearing to cast doubt on the notion that a document could carry both characterizations.
The conference call did, however, explain why Trump’s legal team was told at one point that there could be 200,000 pages to examine when the actual number was 21,792: a company hired to digitize the seized materials for the special master review overestimated the page count.