The justice department asked a federal appeals court on Friday to lift a judge’s order that temporarily barred it from reviewing a batch of classified documents seized during an FBI search of former president Donald Trump’s Florida home last month.
The department told the 11th circuit US court of appeals in Atlanta that the judge’s hold, imposed last week, had impeded the “government’s efforts to protect the nation’s security” and interfered with its investigation into the presence of top-secret information at Mar-a-Lago. It asked the court to remove that order so work could resume, and to halt a judge’s directive forcing the department to provide the seized classified documents to an independent arbiter for his review.
“The government and the public would suffer irreparable harm absent a stay” of the order, department lawyers wrote in their brief to the appeals court.
US district judge Aileen Cannon’s appointment of a so-called special master to review the documents, and the resulting legal tussle it has caused, appear certain to slow by weeks the department’s investigation into the holding of classified documents at the Florida property after Trump left office. The justice department has been investigating possible violations of multiple statutes, including under the Espionage Act, but it remains unclear whether Trump, who has been laying the groundwork for a potential presidential run, or anyone else might be charged.
The FBI says it took about 11,000 documents, including roughly 100 with classification markings found in a storage room and an office, while serving a court-authorized search warrant at the home on 8 August. Weeks after the search, Trump lawyers asked a judge to appoint a special master to conduct an independent review of the records.
Cannon granted the request last week, assigning a special master to review the records and weed out any that may be covered by claims of attorney-client or executive privilege. She directed the department to halt its use of the classified documents for investigative purposes until further court order, or until the completion of the special master‘s work.
On Thursday night, she assigned Raymond Dearie, the former chief judge of the federal court based in Brooklyn, to serve in the role. She also declined to lift her earlier order, citing ongoing disputes about the nature of the documents that she said merited a neutral review by an outside arbiter.
“The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion,” she wrote.
The justice department on Friday night told the appeals court that Cannon’s injunction “unduly interferes with the criminal investigation”, prohibiting investigators from “accessing the seized records to evaluate whether charges are appropriate”. It also prevents the FBI from using the seized records in its criminal investigation to determine which documents, if any, were disclosed and to whom, the department said.
Though Cannon has said investigators are free to do other investigative work that did not involve a review of the documents, the department said on Friday that that was largely impractical. Noting the discovery of dozens of empty folders at Mar-a-Lago marked classified, it said the judge’s hold appeared to bar it from “further reviewing the records to discern any patterns in the types of records that were retained, which could lead to identification of other records still missing”.
The department also asked the appeals court to reject Cannon’s order that it provide the newly appointed special master with the classified documents, suggesting there was no reason for the arbiter to review highly sensitive records that did not involve questions of legal privilege.
“Plaintiff has no claim for the return of those records, which belong to the government and were seized in a court-authorized search,” department lawyers wrote. “The records are not subject to any possible claim of personal attorney-client privilege. And neither Plaintiff nor the court has cited any authority suggesting that a former President could successfully invoke executive privilege to prevent the Executive Branch from reviewing its own records.”
Cannon has directed Dearie to complete his work by 30 November and to prioritize the review of the classified documents. She directed the justice department to permit the Trump legal team to inspect the seized classified records with “controlled access conditions” something government lawyers said on Friday was needless and harmful.
On Friday, Dearie, a former federal prosecutor, scheduled a preliminary conference with Trump lawyers and justice department lawyers for Tuesday afternoon.