The Justice Department said it would appeal a federal judge’s decision to appoint a special master to sift through thousands of documents the FBI seized from Donald Trump’s Florida residence on Aug. 8, according to a document Thursday’s court
The appeal notice came three days after Judge Aileen M. Cannon ruled in Trump’s favor and said she would appoint a special master, slowing, at least temporarily, an investigation into the possible mishandling of highly classified information sensitive, as well as possible concealment. , tampering or destruction of government records.
The Justice Department wrote in a brief filing that it would appeal the decision to the 11th Circuit Court of Appeals.
In a separate, simultaneous court filing, prosecutors asked Cannon to suspend his Sept. 5 decision on two key points: his order to temporarily halt a major part of the FBI’s investigation into possible misconduct of classified information and allow a special master to review classified material among documents seized as part of a court-authorized search of Trump’s Mar-a-Lago club on Aug. 8.
The Post’s Perry Stein explains how a special master will identify whether any documents seized by the FBI are protected by attorney-client or executive privilege. (Video: The Washington Post)
Ultimately, the Justice Department said a special master could be appointed, but argued the judge should bar the special master from reviewing classified documents. The special master could still sort through personal documents and other items the FBI also seized, setting aside materials as needed, the filing says.
Read the Justice Department’s filing asking Judge Cannon for a partial stay of his order
Prosecutors wrote that allowing a special master to review the classified material “would cause the most immediate and serious harm to the government and the public,” noting that those documents have already been moved to a secure facility, separate from the rest of Trump confiscated. papers
And they argued that by barring investigators from using the classified materials found in August until a special master has approved them, Cannon could harm national security by hindering the Justice Department’s ability to retrieve any other classified documents that are still outstanding .
The FBI’s ban on using classified material in the investigation “could impede efforts to identify the existence of additional classified records that are not properly stored, which present the potential for a risk to national security” , prosecutors wrote for the first time. have suggested in court documents that there could be more unsecured classified material they have not yet found.
Trump’s Special Masters and Mar-a-Lago Documents: What You Need to Know
Trump’s legal team argued in federal court in West Palm Beach last week that a special master is needed to determine whether any of the documents, more than 100 of which are classified, should be shielded from investigators because of the attorney-client or executive privilege. They also said an independent outside expert would increase “confidence” in the Justice Department’s criminal investigation.
Attorneys for the Justice Department told Cannon they had already sorted through the documents, using a “filter team” to separate more than 500 pages of documents potentially covered by attorney-client privilege. That settlement was approved by the US magistrate who authorized the search warrant for Mar-a-Lago, Trump’s private home and club in Florida, after the government tried for months to get Trump and his advisers to return all government documents that were kept on the property. .
The Justice Department also argued that a former president cannot assert executive privilege after leaving office, and that it is not possible for one part of the executive branch to assert the privilege to protect another party’s documents.
But even if Trump could assert executive privilege, the Justice Department argued in its Thursday appeal, the government’s “specific demonstrated need” to have access to classified materials would override that privilege. Government prosecutors also said Trump had no clear need to maintain possession of those classified documents.
“Among other things, the classified records are themselves the subject of the government’s ongoing investigation,” the filing says.
Trump and the Mar-a-Lago Papers: A Timeline
In his original ruling, Cannon said the Office of the Director of National Intelligence could continue its analysis of the potential national security risk posed by removing government custody of classified documents, some of which which contain the government’s most sensitive intelligence collection secrets. .
But Justice Department lawyers said Thursday that it is difficult to separate the FBI investigation from the intelligence review. They said they were unsure of the “limits” and “implications” of the court order, prompting the intelligence community to temporarily suspend its review along with criminal investigators.
The Washington Post reported Tuesday that among the documents seized by the FBI was one that described a foreign government’s military defenses, including its nuclear capabilities, according to people familiar with the situation who spoke on condition of anonymity. anonymity The people also said the seized documents detail top-secret US operations that are so closely guarded that many senior national security officials are kept in the dark.
While the appointment of a special master means investigators can’t use the documents they’ve seized until the outside expert authorizes them, an appeal of Cannon’s decision carries its own legal risks for the Department of justice
The appeal process could take longer than any document review by the special master. And there’s no guarantee the government would prevail, especially if the case were to reach the Supreme Court, which has a 6-3 conservative majority that includes three Trump appointees.
This is a developing story. It will be updated.