RACHEL MARTIN, HOST:
The Justice Department's investigation into former President Donald Trump's possession of classified materials has hit a temporary roadblock.
A MARTINEZ, HOST:
A federal judge on Monday ruled in favor of Trump's request to have an independent third party, called a special master, review the materials the FBI seized from his Mar-a-Lago estate. Prosecutors now have to stop using that material in their investigation until the special master's work is done.
MARTIN: We've got NPR national justice correspondent Carrie Johnson with us this morning. Hey, Carrie.
CARRIE JOHNSON, BYLINE: Hey, Rachel.
MARTIN: What reasons did the judge give for this decision?
JOHNSON: The judge, who was appointed by former President Trump, talked about the need to ensure the appearance of fairness and integrity in the extraordinary circumstances presented by this FBI search of Trump's home. She says Trump has an interest in these seized materials - something like 11,000 pages of documents, some personal items and a few records related to his health and his taxes - and she wants the special master to review these papers for possible attorney-client privilege and executive privilege issues. The judge says it's not clear that Trump will ultimately win on those arguments or get any documents back but that there's an enormous public interest in this case, and she wants an orderly process.
MARTIN: An orderly process, though, Carrie, makes it sound like regular process. But this isn't regular, right? Her decision is exceptional. Is it legally sound?
JOHNSON: Well, this decision to put a pause on part of an active criminal investigation is a very unusual one, to put it mildly. I spoke with former Justice Department officials from Democratic and Republican administrations. They mention this judge's language, where she talked about stigma and reputational damage to Trump and the idea an investigation of a former president is of intense interest to the public, so there's a need to ensure the fairness of the process. But by going out of her way to accept Trump's arguments on executive privilege, which the National Archives have rejected as not a close call, and some other language - this decision is giving many legal experts the idea that the former president is getting treated a lot more favorably than other people investigated for crime.
MARTIN: And now this effectively delays DOJ's criminal investigation into the handling of these top-secret documents.
JOHNSON: It does. The government is conducting this ongoing criminal investigation into possible obstruction, retention of information related to the national defense. There's a grand jury at work. And the second part of what the government's doing is a review by the director of national intelligence to look into the national security implications of having secrets in the basement of a resort in Florida where they don't belong. The judge says the national security investigation can continue even if criminal prosecutors need to pause, but it's not clear that's going to work as easily in practice in the real world as the judge says it will.
MARTIN: So what's the Justice Department's response to this ruling? I mean, they were not supportive. They pushed back very strongly against the idea of a special master, even last week.
JOHNSON: They did. Anthony Coley, a spokesman for the DOJ, says they're reviewing the opinion and considering appropriate next steps. Last week, prosecutors even suggested they might appeal if the judge moved to appoint a special master. So we'll watch for more on that this week. And, you know, former Justice Department officials were critical of the judge's reasoning, worried that it could apply to other defendants in other cases. Another reason, perhaps, to appeal - they say President Biden is in charge now. He controls how and when to assert executive privilege, not Donald Trump, especially in the context of this important criminal probe.
MARTIN: So what's the timeline going forward, Carrie?
JOHNSON: The judge says both sides need to get back to her by Friday with a list of candidates to be the special master, and she's going to take it from there.
MARTIN: NPR national justice correspondent Carrie Johnson, helping us parse the decision of this federal judge to allow Trump his request to appoint a special master, thank you so much.
JOHNSON: Happy to be here. Transcript provided by NPR, Copyright NPR.
