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Justice Department appeals ruling on special master in Trump case, says investigation could be "irreparably injured" by pause

DOJ appeals order for Mar-a-Lago document review
Justice Department appeals order for Mar-a-Lago document review 00:23

Washington —The Justice Department filed notice Thursday that it is appealing a Florida federal court's ruling that appointed a special master, or an independent third party, to review the documents seized by federal law enforcement at former President Donald Trump's Mar-a-Lago resort.

Judge Aileen Cannon, appointed to the bench by Trump in 2020, ruled Monday that the federal investigators probing whether Trump mishandled classified documents were to stop using the seized documents in their criminal probe, pending the review of a special master.

The Justice Department also asked Cannon to partially lift her own ruling so that investigators can continue reviewing the 103 most sensitive documents seized from Mar-a-Lago that contained classified markings, including TOP SECRET, the highest classification level. 

Trump and his attorneys have until Monday morning to respond to the request to resume investigating the documents.  

The Justice Department's appeal will be considered by the 11th Circuit Court of Appeals.

In her 24-page ruling earlier this week, Cannon sided with Trump's legal team that the independent review was necessary and wrote that a special master would analyze "potentially privileged material subject to claims of attorney-client and/or executive privilege." The ruling did allow the Office of the Director of National Intelligence its examination of potential national security risks posed by the seized record, even when criminal investigators were barred from accessing them. 

Cannon's order was largely criticized by many in the legal community, including Trump's former Attorney General William Barr

Trump, the judge wrote, faces "unequitable potential harm by way of improper disclosure of sensitive information to the public," and a special master, Cannon reasoned, could work to mitigate that potential damage. 

But in Thursday's motion, which highlighted its concerns in detail, the Justice Department argued the contrary; that halting their investigation posed grave harm to national security and the intelligence review of the records could not be effectively performed without the involvement of criminal investigators. The investigation and the public at large, prosecutors wrote, could be "irreparably injured" by the pause. 

"The ongoing Intelligence Community ("IC") classification review and assessment are closely interconnected with—and cannot be readily separated from—areas of inquiry of DOJ's and the FBI's ongoing criminal investigation," the Justice Department's filing on Thursday said, adding it would be "exceedingly difficult to bifurcate the FBI personnel working on the criminal investigation from those working in conjunction with other departments or agencies in the IC."

Thursday's filing also revealed the 103 documents with classified markings were already separated from the remaining thousands of seized records and that the Intelligence Community had actually paused their analysis of the documents due to "uncertainty" caused by Cannon's Monday order. 

Trump FBI Legal
An aerial view of President Donald Trump's Mar-a-Lago estate is seen near dusk on Aug. 10, 2022, in Palm Beach, Florida. Steve Helber / AP

In his lawsuit, Trump alleged the Justice Department's search warrant that prompted the Aug. 8 search was "overbroad" and that investigators took "presumptively privileged" information. Cannon's opinion earlier this week indicated she thought this claim warranted further review. 

Prosecutors have staunchly opposed that characterization and implemented a filter team to do its own review of the material. And on Thursday, they argued the special master review should not apply to the records with classified markings because such documents explicitly belonged to the government and not Trump.  

"There is no justification for extending the injunction and special-master review to the classified records. The classification markings establish on the face of the documents that they are government records, not Plaintiff's personal records."

Investigators are examining allegations that documents with classified markings were mishandled when they were transferred from Trump's White House to his Mar-a-Lago residence after the presidential transition in 2021. In three separate instances earlier this year that culminated in the August 8 search, the National Archives and the FBI recovered troves of documents from the Florida resort. They are also probing whether Trump or his team obstructed the investigation by not properly responding to a grand jury subpoena, which prosecutors reiterated in their motion on Thursday. 

Trump's request for a special master came two weeks after the FBI took 33 items from a storage room on the property and the former president's office. More than 100 documents with classification markings were found in 13 boxes or containers, while three documents with "confidential" and "secret" classification markings were taken from desks in Trump's office at Mar-a-Lago, the Justice Department revealed in past filings

The FBI also found 48 empty folders with "classified" banners alongside newspaper and magazine articles, books and pieces of clothing kept in boxes or containers retrieved from the storage room.

Both the classified documents and the empty folders, prosecutors wrote Thursday, pose potential risks to national security that warrant continuing the investigation. 

"The FBI would be chiefly responsible for investigating what materials may have once been stored in these folders and whether they may have been lost or compromised—steps that, again, may require the use of grand jury subpoenas, search warrants, and other criminal investigative tools and could lead to evidence that would also be highly relevant to advancing the criminal investigation," they argued. 

To underscore the urgency of their request, the Justice Department notably included a declaration written by Alan Kohler, the FBI's Assistant Director for the Counterintelligence Division.

"The FBI must be able to access the evidence, duplicate it, discern the appropriate [intelligence community] agency…to which it should be provided," Kohler wrote. The declaration carries a penalty of perjury. 

Cannon ordered Monday that the Justice Department and Trump's legal team submit potential candidates for the role of special master by Friday. 

Trump, who has denied wrongdoing, reacted on social media to the Justice Department's response, calling investigators "leakers" and praising Cannon's initial ruling, calling her "brilliant" and "courageous." 

The judge noted in her ruling that the FBI's filter team found medical and tax documents in the seized records and revealed that in two instances, potentially privileged information made its way through the filter and into the hands of investigators. The Justice Department has since asked the court to unseal a report prepared by the filter team. 

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