Thu. Oct 6th, 2022

Washington — The Justice Department moved to stay a portion of a Florida federal judge’s order banning the government from using some of the documents it seized from former President Donald Trump’s residence while an independent third party reviews the documents. 

On Friday, the department filed a motion asking the 11th Circuit Court of Appeals to partially stay U.S. District Judge Aileen Cannon’s order, arguing that the U.S. District Court lacks the authority to ban the FBI from reviewing 103 documents bearing classified markings it seized from Mar-a-Lago in August.

“The district court erred by exercising jurisdiction as to records bearing classification markings,” the Justice Department said in its filing Friday night.

Further, the Justice Department wrote, “The records bearing classification markings are not subject to any plausible claim of privilege that would prevent the government from reviewing and using them.” Its argument is, in essence, that records that are marked classified could not be subject to personal privilege claims by Trump.

“No factual or legal disputes justify the district court’s order as to the records bearing classification markings,” the Justice Department said, and it repeated the argument that without a partial stay that would enable it to continue its investigation, “the government and the public will be irreparably harmed.”

The department filed notice last Thursday that it would appeal the ruling.

Cannon, appointed to the bench by Trump, ruled earlier this month 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 an independent third party, a special master. On Thursday, Cannon appointed U.S. District Judge Raymond Dearie to be the independent arbiter who will review the records, filtering out personal items and documents and material that may be subject to claims of attorney-client or executive privileges.

In its 152-page filing, the department did not contest the naming of a special master, but instead limited its arguments to the government’s right to continue its investigation into whether the former president mishandled the nation’s most sensitive information. It also argued that it should not be obliged to turn classified documents over to the special master.

“Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process,.” the Justice Department said. 

Cannon declined Thursday to grant the government’s request that she partially lift her own ruling so that investigators could continue reviewing the 103 documents with classified markings, writing, “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.” 

The documents marked classified have already been separated from the remaining thousands of seized records, but the intelligence community paused its analysis of the documents due to “uncertainty” caused by Cannon’s order barring Justice Department investigators from scrutinizing them until the special master, U.S. District Judge Raymond Dearie, completes his review.

Prosecutors have argued that Dearie’s review should not apply to the records with classified markings because such documents explicitly belonged to the government, and not to Trump.  

Investigators are examining allegations that documents with classified markings were mishandled when they were transferred from the White House to Trump’s Mar-a-Lago residence after the presidential transition in 2021. In three separate instances earlier this year leading up to the August 8 search, the National Archives and the FBI recovered thousands 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 classified 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

Cannon noted in her ruling Thursday that the FBI’s filter team had 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. 

Andres Triay, Robert Legare and Melissa Quinn contributed to this report.



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