Former President Donald Trump is considering filing a court motion seeking the appointment of a “special master” to review and return evidence gathered during last week’s FBI probe.one of his lawyers said Friday.
Appearing on Mark Levin’s radio show, attorney Jim Trusty said the filing could come as early as Friday night, but also as late as Monday.
“It’ll probably be more like hours,” Trusty said. “It’s very soon.”
Two people familiar with the discussions also confirmed the potential court filing to CBS News on Friday. Trump’s legal team is considering filing the motion in federal district court in Florida, the sources said.
Trump also suggested such a motion in a post on his Truth Social platform on Friday.
“A major Fourth Amendment motion coming soon regarding the illegal trespassing of my home, Mar-a-Lago, right before the all-important midterm elections,” Trump wrote, in part.
A person close to Trump added that the former president and his lawyers are eager for federal prosecutors to provide them with a more detailed list of what was collected and to ensure that a “neutral” person is involved in reviewing the documents.
Trusty told Levin that the filing will claim the FBI’s seizure was “excessive,” violating the law’s requirement that there be “narrowness” in a search.
Trusty said Trump’s legal team will argue that a special master is needed to review the seizure to guard against the possibility that material covered by executive privilege or attorney-client privilege was seized.
“We have privilege issues that are extremely important here,” Trusty told Levin. “We think one of the advantages of the special master, if the master agrees, is that we can stop the DOJ in its tracks when it comes to inspecting these documents.”
Sources say Trump’s legal team could seek help under the Federal Rules of Criminal Procedure that govern searches. At least two rules in particular could be cited, rules 41(f) and 41(g). Trusty explicitly mentioned Rule 41(f) in the interview.
This rule refers to the execution of the search warrant. It states that the officer executing the warrant “must prepare and verify an inventory of all property seized” and must provide a “copy of the warrant and a receipt of ownership” to the person whose property the which were confiscated.
A motion based on this rule would seek the full return of the seized items based on a claim that there was something improper in the execution of the search. Rule 41(g) is a “motion to return property.” It states: “A person aggrieved by an illegal search and seizure of property or by deprivation of property may move for restitution of property.”
David Weinstein, a former assistant U.S. attorney for the Southern District of Florida, told CBS News that filing would trigger a process that would involve listing evidence, determining whether the property has probative value and then challenging it.
“I suspect the government’s response to this will be, we believe everything we’ve seized has probative value,” Weinstein told CBS News on Friday.
Ty Cobb, a former Trump White House lawyer, told CBS News in an interview Friday that he believes the government may also favor a special master to “err on the side of caution.”
“This is an unprecedented investigation into a former president,” Cobb said. “This has never happened before, so I think he would want to play it by the letter of the law.”
On August 8, FBI agents executed a search at Mar-a-Lago, approved by Attorney General Merrick Garland,11 sets of classified documents, according to the unsealed search order. Agents collected boxes marked “Top Secret,” “Secret,” “Confidential,” and “Top Secret/Sensitive Compartmentalized Information.”
The order revealed that the Justice Department is investigating Trump for violations of three criminal statutes, including the Espionage Act.
Sources told CBS News the search was related to a Justice Department investigation into claims by the National Archives that it found 15 boxes of records, including classified material, at Mar-a-Lago earlier this year.
Two sources told CBS News that,a Trump lawyer had signed a document certifying that all classified materials had been removed from Mar-a-Lago.