UPDATE: A judge has unsealed the full inventory list of what was found inside the boxes that the FBI took from Mar-a-Lago last month. The list includes 18 documents marked “TOP SECRET”, 54 marked SECRET, and 31 marked CONFIDENTIAL, according to CNN. There were 48 empty folders marked “CLASSIFIED.”
UPDATE (Sept. 5): A federal judge has ordered the appointment of a “special master” to review the trove of documents seized last month at Mar-a-Lago. “The judge, Aileen M. Cannon of the Federal District Court for the Southern District of Florida, also temporarily barred the Justice Department from using the seized materials for any “investigative purpose” connected to its inquiry of Mr. Trump until the work of the arbiter, known as a special master, was completed.” This temporarily bars the Justice Department from using key pieces of evidence in its investigation, according to the New York Times.
UPDATE (SEPT. 20, 2022): The “special master” is Judge Raymond J. Dearie, of the Federal District Court in Brooklyn. Today, he held a hearing with lawyers representing the federal government and Donald J. Trump. The hearing began promptly at 2:00 pm and ended after about 40 minutes, according to MSNBC.
Judge Dearie pressed Trump’s lawyers to provide evidence that he declassified the documents seized by the FBI. (Trump has repeatedly claimed he declassified them, but his lawyers have not made that assertion in court.) The lawyers questioned the status of those classified documents in court papers. “The government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable,” the lawyers wrote to the 11th Court of Appeals. “However, the government has not yet proven this critical fact. The president has broad authority governing classification of, and access to, classified documents.”
They presented similar arguments today. But Judge Dearie pushed them for evidence, using the concept of prima facie (a Latin term meaning “true on first impression,” or, legally speaking, true until disproved). “If the government gives me prima facie evidence that they are classified documents, and you don’t advance any claim of declassification, then I’m left with a prima facie case,” he told Trump’s lawyers.
Trump’s lawyers claimed they’re not in a position to address declassification until they see the documents. “It’s not about gamesmanship. It’s about not having seen the documents. … We are not in a position, nor should we be in a position at this juncture, to fully disclose a substantive defense,” lawyer Jim Trusty said. “We shouldn’t have to be in a position to have to disclose declarations and witness statements.”
Dearie replied that not doing so could be problematic for their case. “My view is, you can’t have your cake and eat it [too],” Dearie said.