The federal judge mulling whether a special master is warranted in the case against President Trump turns out to have an independent streak that has injected uncertainty into these preliminary proceedings, and Mr. Trump’s request for a special master — which one of his lawyers called a “really modest idea”— lives another day, at least.   

During a two-hour hearing held not at Judge Aileen Cannon’s usual courtroom at Fort Pierce bur rather at West Palm Beach, within striking distance of Mr. Trump’s compound, the DOJ tried to ward off a special master and narrow the independent arbitrator’s remit in the event that the judge does appoint one. Judge Cannon signaled only that a decision would arrive “in due course.”   

The government argued that if a special master is called upon, its purview should encompass only attorney-client privilege, not the far more contested matter of executive privilege. While Mr. Trump has claimed he retains those protections, the DOJ has been adamant that the protections expired when President Biden took the oath of office.  

The DOJ maintained that there “is no role for a special master to play in executive privilege.” The judge seemed to push back against that distinction. One federal lawyer, Julie Edelstein, argued: “There is no role for a special master to play in executive privilege.” Judge Cannon responded, “I’m not sure it’s as cut and dried” as Ms. Edelstein argued.

Both the DOJ lawyers and Mr. Trump’s team accused the other of breaking with precedent. The DOJ argued that it “would be unprecedented for the executive to be able to successfully assert privilege against the executive branch,” while Mr. Trump insisted that prosecutors were “trying to criminalize” the “judicially unenforceable Presidential Records Act.”   

The chief of the DOJ’s counterintelligence section, Jay Bratt, argued that the appointment would slow review of the 300 documents seized at Mar-a-Lago, a process that is already under way. That work would pause should the judge appoint a special master. Judge Cannon indicated that a separate intelligence review of potential security risks could be allowed to proceed. 

Mr. Trump’s lawyers sought to downplay those risks, with one, Christopher Kise, insisting: “This is not a case about some Department of Defense staffer stuffing military secrets into a bag and sneaking them out in the middle of the night.” Another, James Trusty, analogized the documents at Mar-a-Lago to an “overdue library book.”

Judge Cannon also suggested that she intends to release a more detailed inventory of what was taken from Mar-a-Lago, after both sides declined to object. There was no timetable given for that disclosure.