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Justice Department calls for reversal of "entirety" of special master ruling in Trump documents case

Washington – The federal criminal investigation into allegations that former President Donald Trump mishandled sensitive White House documents after leaving office must continue without hindrance, prosecutors argued in a brief filed in the 11th Circuit Court of Appeals on Friday, citing a "demonstrated, specific need" for evidence in its ongoing criminal investigation. 

"The Court should…reverse the district court's injunction and end the special master's review," prosecutors wrote.

The Justice Department's filing came in its appeal to the 11th Circuit to reverse a lower court's ruling appointing a special master, or independent arbiter, to review the thousands of documents seized at Trump's Mar-a-Lago resort in August. Prosecutors have argued District Judge Aileen Cannon's decision to grant Trump's request for an  independent review of the records unduly restricts the government's investigation into the matter. In Friday's filing, prosecutors said Cannon's ruling should be vacated "in its entirety." 

Trump's lawyers support Cannon's ruling, writing in a previous filing that the "unprecedented and misguided" investigation "seeks to criminalize the possession by the 45th President of his own Presidential and personal records." The nature of the investigation, they argued, warranted a special master's intervention and review of potentially restricted documents under attorney-client or executive privileges. 

But in Friday's filing, the Justice Department said Cannon had "erred" when she chose to take up Trump's request and step into the case, explaining the department's Privilege Review Team "had already segregated any records potentially covered by the privilege." 

And on the question of executive privilege, prosecutors wrote that there was "no plausible claim of executive privilege that could justify restricting the Executive Branch's review and use of the seized records in the performance of core executive functions," like the current investigation. 

Since Cannon's initial ruling – which also halted the investigation into the 103 documents with classified markings that were seized at Mar-a-Lago, pending the special master's review – the 11th Circuit has already sided with the Justice Department and allowed it to continue examining those sensitive documents as its criminal probe continues, even as the special master review process goes on. Trump appealed that narrow decision to the Supreme Court, which refused to intervene in an order issued on Thursday and allowed the criminal probe to be carried out with the use of the sensitive documents. 

New York Federal Judge Raymond Dearie, Cannon's pick to serve as special master at Trump's suggestion and with the Justice Department's consent, initiated the court-ordered review process last month, asking the opposing parties to confer about potential attorney-client and executive-privilege claims. Already, the Justice Department says it has made available to criminal investigators and Trump's legal team a set of agreed-upon documents and returned to Trump materials deemed unrelated to the investigation. 

For her part, Judge Cannon overruled some of Dearie's initial plans for the special master process and has the final say over the independent review unless and until the 11th Circuit grants the Justice Department's request to step in. 

The investigation into Trump's alleged mishandling of documents with classified markings intensified in August with the execution of a court-authorized search warrant at Trump's Mar-a-Lago residence. That search yielded 33 boxes of material, including 103 documents with classified markings – labeled either CONFIDENTIAL, SECRET, or TOP SECRET. The boxes also contained nearly 50 empty folders with classified banners on them. 

Prosecutors revealed in court documents and proceedings that they are undertaking a national security investigation into the matter, and the Office of the Director of National Intelligence is conducting a damage assessment, as a result of the allegedly improperly stored documents. 

An individual who worked at Trump's Mar-a-Lago resort has told investigators that the former president directed the individual to move boxes of documents – including those that might contain classified markings – to a different location inside Mar-a-Lago as the federal investigation into Trump's handling of certain records was already underway, according to a person familiar with the matter

According to the source, the individual said that Trump ordered the boxes moved both before and after the Justice Department issued a subpoena in May for classified documents in Trump's possession, and investigators have since seized video footage of the boxes being moved – evidence that contributed to the FBI's decision to execute the search warrant.

The former president has denied all wrongdoing and accused the Biden administration of "weaponiz[ing] law enforcement and fabricated a Document Hoax in a desperate attempt to retain political power." 

The Justice Department, however, argued that its actions in the investigations have been justified, writing on Friday that investigators "first sought these records through voluntary requests" before applying for a court-authorized search warrant.

"Only when investigators learned that Plaintiff's response was likely incomplete did they seek a search warrant." 

Prosecutors say they need unencumbered access to both the records with classified markings and those without. According to Friday's brief, the sensitive documents "may constitute evidence if obstruction of justice" – pointing to allegations that Trump's team might not have been fully truthful with investigators – and the unclassified documents could help, "identify who was responsible for the unauthorized retention of these records, the relevant time periods in which records were created or accessed, and who may have accessed or seen them."  

In all, they write, "the district court erred in requiring the government to submit any of the seized materials for the special-master review process." 

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