On Labor Day Monday - generally a fairly sleepy news day - Aileen Cannon, a United States District Court judge appointed by President Trump, agreed with the Trump legal team's argument and ordered that a special master be appointed to review records seized by the FBI in the raid.
Specifically, the special master will be responsible for deciding which of the documents seized by the FBI in the Mar-a-Lago raid might be subject to executive as well as attorney-client privilege.
John Lawlor, a Florida lawyer, points out that "It is absolutely possible for the Justice Department to immediately appeal this decision to the Eleventh Circuit and potentially have it overturned."
What the judge has essentially said on Monday is that it's not clear enough right now to say for certain that the government will win on the special privilege point.
This isn't the first time a special master has been used in relation to material review for FBI search and seizure operations. The Michael Cohen and Rudy Giuliani cases also involved a special master.
Yet unlike in those cases, former President Trump's lawyers are putting a lot of weight on the shield that executive privilege could provide Trump if a special master agrees with the argument. While the DOJ has argued since the raid that the executive privilege argument doesn't help Trump as the records in issue belong to the government, not to him, this argument is ultimately something Trump will now at least have heard.
Both sides have only four days to agree upon a special master. At an absolute minimum, that candidate needs to have an extremely high-level national security clearance to be legally allowed to review the types of documents seized from former President Trump.
Bill Barr, speaking to FOX News on Friday, characterized former President Trump's requests to appoint the special master as "a waste of time." In rebutting arguments that the Mar-a-Lago search was unprecedented, Barr argued that so was a former president accumulating classified information in his country club.
Where this all goes from here will be hour-by-hour, as it is highly unlikely that the government will not challenge this federal court decision. Strategically, the only reason the DOJ would consider not appealing the decision to have a special master is if they believe that the process would be even slower by appealing to the federal circuit court.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and 24-7 Abogados. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, NewsBreak, and many other leading publications.