Trump documents probe: DOJ to appeal judge’s decision to grant former president’s special request

The Justice Department on Thursday decided to appeal a federal judge’s ruling in the dispute over documents seized from Donald Trump’s Mar-a-Lago estate, where the government says highly classified documents were being held from inappropriate way.

Earlier this week, U.S. District Judge Aileen Cannon granted Trump a special master’s request to review what was taken, including for items that might be covered by executive privilege, even though Trump is no longer the president and has never claimed privilege on specific records. .

The decision, which barred the government from further use of documents seized in its criminal investigation, was widely criticized by legal experts on both sides, including former Trump attorney general William Barr.

“The Court hereby authorizes the appointment of a Special Master to examine seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege,” Cannon wrote.

The DOJ appeal will go to the 11th Circuit.

Federal prosecutors also asked Cannon on Thursday to suspend the portion of his decision barring the government from further reviewing documents bearing classification marks taken during the FBI’s Mar-a-Lago search. Cannon had demanded that law enforcement release these documents to the special master.

The DOJ said in Thursday’s court documents that if Cannon does not grant a stay by September 15, he “will intend to seek relief from the Eleventh Circuit.”

Trump “does not and cannot assert that he owns or has a right of possession to classified documents,” prosecutors wrote in a 21-page motion.

Cannon gave Trump’s team until Monday morning to respond to the stay request.

The DOJ is not seeking a stay on the release of unclassified documents to an appointed special master, but said failure by Cannon to grant their stay would “cause the most immediate and severe harm to the government and the public.” “.

Cannon noted in his previous order that the appointment of an independent third party would not interfere with the ongoing classification review and national security assessments conducted by the intelligence community into what was recovered from Trump’s home on last month.

The judge had given the DOJ and Trump’s team until Friday to confer and submit a joint list of proposed special master candidates and a proposed order outlining the special master’s duties and limitations.

Irreparable damage

In Thursday’s motion, the DOJ repeatedly sought to undermine Cannon’s position in its decision approving the appointment of a special captain – and cited the risk of “irreparable harm” to national security and the investigation. ongoing criminal if she refuses to accede to their request to stay.

Although they have signaled that they care relatively little about the unclassified files seized at Mar-a-Lago turned over to a special handler, prosecutors have argued that the classified files they say were found with Trump are essential both to their ongoing intelligence assessment and criminality. investigation and Trump has absolutely no legitimate legal claims against them.

Although Cannon approved the Intelligence Community (IC) to continue its separate assessment of the documents, this “cannot be easily separated” from the DOJ and FBI criminal investigation and the IC was forced to temporarily suspend its over-cautious review. , wrote the prosecutors.

“Applying the injunction to classified documents would thus impede the government’s ability to conduct an effective national security risk assessment and classification review and could prevent the government from taking necessary corrective action in light of this. review, risking irreparable harm to our national security and intelligence interests,” the DOJ filing reads.

They noted that the injunction could prevent the FBI from being able to identify “the existence of additional classified documents that are not properly stored” after those already seized at Mar-a-Lago – reflecting the investigators’ concerns that there may be more material taken by Trump from the White House than they have yet recovered. (ABC News previously reported that federal law enforcement is concerned that classified documents may be located anywhere other than Mar-a-Lago. Trump has denied any wrongdoing.)

“Among other things, the classified records are the very subject of the government’s ongoing investigation,” the DOJ filing said.

The department said a partial stay would not harm Trump because it would not disrupt the master’s special review of any other records, including those subject to solicitor-client privilege, as the government has already been able to review the files classified for a month – – “which, again, belong indisputably to the government, not to (Trump).”

They said the ability to use the documents marked as classified is a critical part of their ongoing investigation, particularly regarding the two potential offenses of unauthorized withholding of national defense information – “classified records are not merely relevant evidence; they are the very objects of the relevant criminal law” – and of the obstruction: “Again, the classified documents seized at issue here – each of which is clearly encompassed by the citation to to appear – are at the heart of this investigation.”

Prosecutors wrote that if Trump believed he ever had a valid assertion of executive privilege over the documents, he had more than enough time to make such assertions, including after the DOJ issued his subpoena. before the grand jury in May.

“Instead, on June 3, 2022, the plaintiff’s attorney produced a set of classified documents to the government, and the plaintiff’s custodian certified that ‘all responsive documents’ were produced after a ‘diligent search'” , indicates the folder. “Plaintiff cannot now maintain – following the government’s seizure of additional classified documents which Plaintiff failed to produce – only the classified documents obtained in the search, which responded to the grand jury’s subpoena , are protected from government scrutiny by executive privilege.”

In a footnote to the latest filing, DOJ officials wrote that they did not interpret Cannon’s order as prohibiting their department, the FBI, or the Office of the Director of National Intelligence from briefing leaders of Congress with intelligence oversight responsibilities regarding uncovered records – suggesting they may seek to brief committee members at some point.

The dispute so far

Trump’s team made the request for a special handler two weeks after his August 8 home was searched.

The DOJ strongly opposed the request from the outset, arguing that the appointment would be “unnecessary and would significantly harm important government interests, including national security interests” by delaying their investigation.

The department said last week that a team tasked with identifying potential attorney-client confidential documents that were seized during the Mar-a-Lago search had already completed their review and were in the process of resolve any conflicts of privilege.

The DOJ also argued that Trump lacked standing to seek a special master because the documents “are no longer his” and belong to the federal government.

“He is no longer president and because he was no longer president, he had no right to take these documents,” DOJ attorney Jay Bratt said as the two sides faced off in front of the court. court on September 1.

Trump’s lawyers, by contrast, had said the third-party review was necessary to deal with potentially privileged documents seized in the search, including both attorney-client and executive privilege.

Christopher Kise, a new addition to Trump’s legal team, cited a “lack of public confidence” in the DOJ and a “real or perceived lack of transparency” during the court appearance.

At one point, a lawyer for Trump compared the former president’s refusal to turn over documents to the National Archives to a “backlogged library book.”

Trump’s team celebrated Cannon’s decision, while a group of legal experts and observers criticized it for going too far.

Barr, Trump’s former attorney general, criticized the decision during an appearance on Fox News: “The opinion, I think, was wrong, and I think the government should appeal it. It’s deeply flawed. in several respects.”

ABC News’ Alexandra Hutzler contributed to this report.

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