The US Justice Department and Donald Trump's lawyers will jointly file a list of candidates to serve as a special master to review records the FBI seized from the former president's Florida estate.
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The filing, due on Friday, was ordered by US District Judge Aileen Cannon, a Trump appointee in Fort Pierce, Florida, after she granted Trump's request for a special master over the Justice Department's objections.
The order, made on Monday, temporarily bars prosecutors from reviewing the seized records as part of their ongoing criminal investigation.
In a court filing on Thursday, the department asked Cannon to suspend two main parts of her order so it can continue reviewing the seized classified materials for its continuing investigation and protect them from disclosure to a special master.
It also warned some classified materials may still be missing after an August 8 search of Trump's home by the FBI.
The investigation turns on whether Trump, a Republican, improperly removed classified records from the White House and stored them at his home in Palm Beach, and whether he unlawfully tried to obstruct the probe by concealing or removing some of the records when the FBI tried to collect them in June with a grand jury subpoena.
Whoever is tapped as special master will need to weed out anything that should be kept from prosecutors, either due to attorney-client privilege or executive privilege - a legal doctrine that shields some White House communications from disclosure.
The US Supreme Court last year side-stepped the question of how far a former president's privilege claims can go in rejecting Trump's bid to keep White House records from a congressional panel investigating the January 6, 2021, US Capitol riot by his supporters.
However, the US National Archives, after conferring with the Justice Department, told Trump's lawyers earlier this year he cannot assert privilege against the executive branch to shield the records from the FBI.
Cannon's order, which said US intelligence officials can continue using the seized records to conduct a national security damage assessment, has been criticised by both Democratic and Republican legal experts.
Attorneys have questioned the logic of her decision to include an executive privilege review because the records are not Trump's personal property and he is no longer president.
The Justice Department's "filter team", a group of agents separate from the investigators, have reviewed the more than 11,000 seized records.
It identified about 500 documents that could be subject to attorney-client privilege.
More than 100 pages recovered by the FBI's August search bear classification markings, including some marked "top secret".
Prosecutors say they cannot easily separate the national security review from their criminal work because the two are connected.
Legal experts have said finding a special master both sides can agree on is no easy task.
The person would potentially need top-level security clearance, be an expert on executive privilege and be willing to take on a very public role in the political spotlight.
Australian Associated Press
