The special master overseeing the Mar-a-Lago documents investigation has ordered former President Donald Trump’s lawyers to back out of court claims that the FBI may have planted evidence at the property during their investigation last month.
Judge Raymond Dearie, the court-appointed special master, said in a filing Thursday that the Trump team must file an affidavit saying whether it believes the Justice Department included any items in the “inventory” of the material obtained from Mar-a-Lago that they were not actually seized during the search.
The statement must include “a list of any specific items listed in the Detailed Inventory of Property that Plaintiff claims were not seized from the premises on August 8, 2022,” Dearie wrote in the order.
That has been raised as an issue in the case because Trump himself, some of his lawyers and several of his outside Republican allies have publicly argued that the FBI planted evidence at Mar-a-Lago during the Aug. 8 probe.
However, they offered no evidence to support these accusations.
Thursday’s new order from Dearie came two days after he held his first in-person hearing with Trump’s lawyers and federal prosecutors, and outlines his plan for how the special master review will proceed.
On Wednesday night, Trump suggested the FBI planted evidence during the investigation. He asked Fox News’ Sean Hannity: “Did they put something in those piles” of materials taken from Mar-a-Lago, “or did they do it later?”
When asked by Hannity if there was video of it, Trump said, “Nah, I don’t think so.”
The judge set a Sept. 30 deadline for Trump’s lawyers to file that affidavit. It also asked the Department of Justice to submit statements attesting to key facts about the investigation.
The FBI has previously declined to comment on allegations of wrongdoing in its investigation. Asked last month by a reporter about the allegation that federal agents could have planted evidence, FBI Director Christopher Wray said: “I’m sure you can understand that it’s not something I can talk about, so I will refer you to the Department of Justice.”
Dearie opened the door with Thursday’s order for a hearing where “witnesses with knowledge of the relevant facts” could be called to testify about the Mar-a-Lago search and the materials seized.
If that happens, it could become a moment for Trump’s side, which has made a wide range of statements about alleged government wrongdoing out of court but is much more reserved in court, where it would be a crime to knowingly lie.
The Justice Department is also being asked to provide Trump’s lawyers with “copies of all seized materials” — except those marked classified — by Monday. This is necessary so Trump’s side can understand exactly what was removed from Mar-a-Lago and determine what materials they believe should be protected under attorney-client or executive privilege.
The deadline for Trump’s team to finish reviewing all documents for potential privilege designations is Oct. 14, though they will have to send “rolling” batches of their designations along the way. Dearie ordered both sides to complete their evaluations and send him their final designations by October 21.
The judge also noted that there may be some documents that are covered by executive privilege but can still be reviewed by the Justice Department, which is part of the executive branch. That would be a more nuanced view than what Trump’s team has offered — which is essentially that federal prosecutors shouldn’t be allowed to review those privileged documents or use them as part of the investigation.
Dearie also raised the possibility of sending some of the proceedings back to Judge Bruce Reinhart, who approved the search warrant after finding there was probable cause for multiple crimes that took place at Mar-a-Lago. That judge has since been the target of death threats and online vitriol from Trump supporters, and Trump has publicly made several false allegations about him.
Dearie has also hired a retired federal judge from the Eastern District of New York to assist his review and will also rely on staff from that district to work on the material review.
Dearie said the judge, James Orenstein, “has experience with complex case management, privilege review, warrant procedures” and other related matters, and that he currently has a top secret security clearance.
The bio page for the law firm where Orenstein previously worked says he served “on the prosecution team in the Oklahoma City bombing trials.” Attorney General Merrick Garland played a leading role earlier in his career in the Oklahoma City investigation.
Dearie said he will not seek any additional compensation for his time as a special master because he is currently on the payroll of the U.S. government as a federal judge. But he suggested Orenstein be paid $500 an hour, which would be covered by Trump, based on a previous court ruling in the case.
