The former president also gets a deadline to produce any proof of tampering during the FBI raid last month.
A car passes in front of former President Donald Trump's Mar-a-Lago resort on Feb. 11, 2022, in Palm Beach, Fla. | Joe Raedle/Getty Images
By Josh Gerstein
09/22/2022 04:37 PM EDT
The outside expert tapped to sort through former President Donald Trump’s legal claims over documents seized from his Florida home last month is calling for backup.
U.S. District Court Judge Raymond Dearie, a New York City-based jurist named by a federal judge in Florida to act as a so-called special master in the review of more than 11,000 documents the FBI confiscated, proposed on Thursday that former Magistrate Judge James Orenstein help with the process.
“The undersigned has determined that the efficient administration of the Special Master’s duties requires the assistance of the Honorable James Orenstein,” Dearie’s proposed plan for the document review said. The order said Orenstein “has experience with complex case management, privilege review, warrant procedures, and other matters that may arise in the course of the Special Master’s duties.”
Orenstein spent 16 years as a federal magistrate in the same Brooklyn courthouse where Dearie sits. Orenstein drew attention several years ago for his role in what was semi-sarcastically dubbed “the magistrates’ revolt” — rulings from a smattering of federal magistrate judges across the country questioning government tactics in warrant applications seeking electronic data.
In 2016, Orenstein issued a controversial ruling rejecting prosecutors’ arguments that a two-century-old federal law gave the government the right to command Apple to assist in unlocking an iPhone used by an alleged drug dealer. The judge’s pro-privacy stance in that matter may have led the secretive Foreign Intelligence Surveillance Court to appoint him to a list of approved friends of the court who provide their perspective on surveillance requests.
Dearie proposed that the former magistrate, who has a top secret clearance, be paid $500 an hour for work on the Trump documents case. The federal judge who named Dearie as special master, Florida-based Aileen Cannon, has previously ruled that Trump must assume all expenses related to the review.
Dearie said in the Thursday order that he would not be compensated for his work because he’s still being paid his judge’s salary, but that expenses such as Orenstein’s fees must be paid in full and on time or Trump could face court sanctions.
While the seven-page proposal the special master issued on Thursday bears Dearie’s name and a form of electronic signature, metadata attached to the document indicates that Orenstein — who retired from the court in 2020 — was involved in drafting it. Dearie’s chambers did not immediately respond to a request for comment on whether Orenstein helped prepare the proposal to involve him in the case.
Dearie’s plan, still subject to comment from the parties, gives Trump a deadline of Sept. 30 to indicate whether he disputes the FBI’s list of what was seized in the search. Last month, Trump suggested that such tampering was a possibility given the FBI’s refusal to allow a lawyer for Trump to witness the search.
“The FBI and others from the Federal Government would not let anyone, including my lawyers, be anywhere near the areas that were rummaged and otherwise looked at during the raid on Mar-a-Lago,” Trump wrote on his Truth Social media site last month. “Everyone was asked to leave the premises, they wanted to be left alone, without any witnesses to see what they were doing, taking or, hopefully not, ‘planting.’”
Trump has not offered any evidence of such tampering by the FBI, but Dearie’s plan says that if Trump’s team wants to press such a claim, someone will need to submit a statement under penalty of perjury detailing the grounds for it.
The proposed plan calls for the review of the more than 11,000 documents seized from Mar-a-Lago to take place in four batches. The first involves a small set of information the Justice Department has already flagged as potentially subject to attorney-client privilege. Trump’s team has weekly deadlines stretching through Oct. 14 to identify allegedly privileged material and explain why. Prosecutors have parallel deadlines through Oct. 21, with Dearie scheduled to submit his recommendations to Cannon by Oct. 31
As of now, roughly 100 documents with various national security classification markings that were seized during the search will not be part of the special master process. Cannon ruled that they should be and rebuffed a request by prosecutors to carve those records out.
But on Wednesday night, a federal appeals court sided with the Justice Department, ruling that the government’s broad authority over classified information made it a mistake for Cannon, a Trump appointee, to include the alleged secrets in the wider review and for her to put them off-limits to criminal investigators in the meantime.
Trump’s lawyers have yet to indicate whether they plan to ask the Supreme Court to step in and restore Cannon’s original order.
It took little time for the 11th U.S. Circuit Court of Appeals ruling against Trump to boomerang and help prompt a legal loss for one of his allies: MyPillow founder Mike Lindell.
Last week, the FBI used a search warrant to seize Lindell’s mobile phone as he waited at a Hardee’s drive-through in Mankato, Minn. Lindell filed suit on Tuesday in federal court in Minnesota, seeking a temporary restraining order requiring the government to stop accessing his phone and ultimately to return it.
However, a judge denied the restraining order on Thursday, citing, among other things, the 11th Circuit ruling against Trump a day earlier.
U.S. District Court Judge Eric Tostrud, a Trump appointee, said that Lindell’s right to get his phone back “is not obvious, and that’s understating things.” The judge’s order didn’t rule out the possibility that Lindell might be entitled to get his phone back after both sides have the chance to develop their legal arguments in court filings.
Lindell’s phone appears to have been seized in connection with an ongoing investigation into alleged tampering with voting machines in Colorado last year.
CORRECTION: An earlier version of this article misstated the focus of the investigation that led to the seizure of Mike Lindell’s phone.
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