What Happened with the Potentially Privileged Documents Seized from Mar-a-Lago

Yesterday, SDFL AUSA Anthony Lacosta filed a sealed letter to Special Master Raymond Dearie along with the log laying out any disputes between the government and Trump over his potentially privileged documents.

Subsequent to that, Judge Aileen Cannon ordered unsealed the status report that Lacosta and Benjamin Hawk filed back on August 30. I will explain the two kinds of damage Judge Cannon did to Donald Trump in order to create an excuse to intervene in this matter — as I keep saying, Cannon caused the harm she intervened to fix.

For now, I want to talk about what happened with the potentially privileged material. Here’s a table of what we know about those documents.

Note that one page privileged document, item B-33. At least per the filter team, it may be the only clearly privileged document seized, one page out of 11,000 documents.

The warrant to search Trump’s beach resort required a privilege team to search his office. But (as members of that team explained in the hearing on September 1), they instead did the initial search of both the storage room and Trump’s office. As a result, the privilege team segregated 6 sets of information, which were catalogued on what I’ve called the SSA Receipt. The revised detailed inventory describes these boxes this way (note, these descriptions probably exclude the potentially privileged material, which is inventoried separately):

Item 4, which the status report describes as “the entire contents of a single drawer” in Trump’s office.

Three passports were originally in this drawer, which is why they were seized. They were returned on August 15. These documents were appropriately seized under the warrant because there were two classified documents in the drawer.

Items 29 through 33, which were in the Storage Room.

These boxes would have been appropriately seized under the warrant because all were stored in the place where boxes storing classified documents were stored. In fact, Item 29 had a Top Secret document in it and Item 33 has two empty staff secretary folders in it. Additionally, all are described to contain government documents, which were also authorized for seizure.

Two days after the search, on August 10, a Case Agent found a 3-page letter from law firm Morgan Lewis, “comingled with newspapers;” Morgan Lewis’ Sherri Dillon was named in Tish James’ motion to compel Trump’s deposition. So they sent the entire box to the privilege team, as described in the warrant. The box also included 4 pages of government documents treated as potentially privileged, including an email from the Air Force Academy’s coach.

By August 11, the privilege team had segregated out anything that  met their over-inclusive standard for potentially privileged documents from the rest of the documents, then sent the 7 boxes to the investigative team (which is, presumably, what led to the return of the passports days later).

On August 25, a case agent provided one more document to the privilege team:

39-page set of materials that appears to reflect the former President’s calls. (The majority of pages are titled “The President’s Calls” and include the Presidential Seal.) Specifically, the document contains handwritten names, numbers, and notes that primarily appear to be messages, as well as several pages of miscellaneous notes.

One of these messages was from “Rudy,” though did not appear to constitute legal advice.

The privilege team separated all these potentially privileged documents into two categories:

Category A

This category includes 21 sets of documents for a total of 138 pages. Most are, “primarily government records, public documents, and communications from third parties,” which could not qualify as privilege. One document is a 3-page email to a White House email account, which the government maintains constitutes a waiver to attorney-client privilege. As noted, another is a printed email from the Air Force Academy’s head baseball coach with the word “PatC” on it.

For example, the Privilege Review Team agents identified and segregated a printed email exchange between the U.S. Air Force Academy’s head baseball coach and the White House because “PatC” (perhaps a reference to White House Counsel Pat Cipollone) was written on the document in black marker (Item Number 4 in Exhibit A at FILTER A-005).

Another, as noted above, is one of the phone messages from the President’s Calls (we know this is a phone message because both are described as Item 21 in Category A), from “Rudy” and appearing to be a topic unrelated to legal advice.

Category B

This category consists of 43 sets of documents, for a total of 382 pages. The status report describes those as,

legal in nature (e.g., settlement, non-disclosure, and retainer agreements) or otherwise potentially sensitive, and they do not appear to be themselves government or Presidential Records or classified documents.

According to the privilege team, just one of those documents appeared to be privileged. But way back on August 30, they proposed to give the originals of all these documents back to Trump. Then they tried again on September 1. Trump had to wait two more weeks before receiving these documents, so that Judge Cannon could use them as her basis for intervening in the case.

September 26 email

According to Trump’s objections, on September 26, the government provided an email newly identified by case agents (presumably in the course of reviewing the inventory). The government maintains the email is not privileged but Jim Trusty claims it is.

On Monday, September 26, counsel for the Privilege Review Team provided Plaintiff’s counsel with another example of filter failure. The email in question was identified by the “FBI case team,” and returned to the Privilege Review Team, which is characterizing the communication as non-privileged. Plaintiff believes the email falls squarely into the category of attorney-client privileged.

In addition to the document sorting, before the filter team shared any photographs documenting the search, both the filter agents and the filter attorneys reviewed the photographs to ensure no privileged documents were captured in the photo.

Update: Added explanation for Morgan Lewis letter, h/t Simon. Added observation that there may be only a single privileged page in the whole seizure. Corrected numerical error.

26 replies
  1. JonW says:

    Is it fair to say that in reality, the filter process worked quite well, and maybe even was extra cautious if it filtered out communication from a baseball coach?

  2. bitte says:

    Semi off-topic: The leather box of which we have heard so much… is it by any chance identical to the leather boxes used to transport the elector’s votes for certification on Jan 6?
    I saw a reference to them in the OK trial yesterday and it got me wondering.

        • Leu2500 says:

          Somebody else speculated that it might be like the Queen’s (now King’s) red boxes

          Or heck, it could be like a jewelry box. Just something “nice” (whatever that means to the orange Liberace) to keep special items in

            • Tracy Lynn says:

              I didn’t realize there was a term for this phenomenon. And, I certainly didn’t realize that this phenomenon was named after references to the Baader-Meinhof group. Fascinating!

            • Tom-1812 says:

              It sounds similar to Jung’s theory of synchronicity, but I’m sure there are significant differences between the two ideas.

              • Rayne says:

                Frequency illusion is a shift in consciousness, ex: your awareness of other red cars after buying a red car doesn’t change the odds of red cars because they were already there before you became aware of them.

                Synchronicity is a series or pattern of events which defy odds and may occur without observers’ awareness, but can’t be explained readily, ex. a group of friends who haven’t communicated in advance about buying cars learn afterward they all bought the same model car in the same color red.

  3. Canuck Watching says:

    This site is so awesome – explains so much and is educating me slowly on the machinations of U.S. law – thank you all!

    I was wondering if the timing of Judge Canon’s release of the filter team’s document log had anything to do with the Supreme Court’s declining to hear a case on DOJ filter teams?

    • farmfresh says:

      IANAL. I would say the timing of filter team logs release didn’t have anything to do with the SCOTUS denial of cert, but that 11thC opinion probably played into her decision to insert herself into the plaintiff’s arguments and essentially raise the 41(g) question on Trump’s behalf.

      If I read the 11thC decision correctly, it says that filter teams are OK, but it was also OK (at least in that instance) for the district court to take charge and modify the filter team mandate It also said that suppressing evidence at trial isn’t the only, or even the best, remedy when potentially privileged evidence is seized. It may also be returned pre-indictment via 41(g). As EW had suggested several times, Cannon is teeing up the case in front of her to use her own ambiguously defined privilege categories as a pretext to return government property to Trump under 41(g). Which seems plausibly consistent with the 11thC precident in Korf v US.

      From the plaintiff’s perspective, it’s at least an argument worth trying, even if it was the judge, and not the plaintiff, who seems to have come up with it.

  4. earlofhuntingdon says:

    Smart of the government to use a taint team for the entire search. From the way Trump files, it could have found potentially privileged information squirreled away in his underwear drawer. Had the taint team not found what it did, Trump would be arguing everything was tainted because it found a one-page item stashed among back copies of fake Time magazine covers – exactly where clients tend to file important correspondence with their lawyers.

  5. Becker says:

    Trump has asked the Supreme Court to reverse the order of the Circuit Court involving the Classified documents.

    • earlofhuntingdon says:

      Hail, Mary passes come in all forms. Does this mean that Trusty lied to the 11th Cir., about not having time to deal with an expedited appeal and Judge Cannon’s document review schedule at the same time? Enquiring minds and all that.

    • Parker Dooley says:

      Well, probably some remaindered copies of Art of the Deal. And maybe Mary sent him a copy of her book. It had his name in it, so he probably would have read it.

  6. harpie says:

    Zoe Tillman: The actual lists appear to have been “inadvertently publicly docketed for a time”:

    10:42 PM · Oct 4, 2022

    New: Newly disclosed logs created by a government filter team provided more details on the range of government, business, and personal records found during the search of Trump’s Mar-a-Lago home [Bloomberg link] […]

    (For technical reasons we don’t have a link to the document in the piece at the moment, but here it is: https://s3.documentcloud.org/documents/23118826/notice-of-status-of-filter-review-with-exhibits-a-and-b.pdf )

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