The Justice Department on Thursday appealed a court-ordered special master review of the materials seized by the FBI at Mar-a-Lago – including more than 100 classified documents – as it argued the order was putting US national security at risk.
The government has halted the intelligence community’s risk assessment of classified documents it obtained during last month’s search of former President Donald Trump’s home and resort.
In addition to its appeal, the Justice Department asked US District Judge Aileen Cannon, the Trump appointee who ordered the special master, to let it continue the review of documents being done for the FBI’s criminal probe – a review the judge put on hold. The prosecutors argued that the criminal probe could not be decoupled from the intelligence community’s review.
More on Mar-a-Lago investigation
“The application of the injunction to classified records would thus frustrate the government’s ability to conduct an effective national security risk assessment and classification review and could preclude the government from taking necessary remedial steps in light of that review – risking irreparable harm to our national security and intelligence interests,” the DOJ wrote in it’s request for a stay.
The Justice Department had vigorously opposed the appointment of a special master, which is a third-party attorney tasked with reviewing evidence and filtering out privileged documents. The department argued to Cannon the independent review wasn’t necessary, given the internal DOJ filter practices that had been used in the search.
In her Monday order granting Trump’s request for the special master, Cannon halted any use of the seized materials for the DOJ’s criminal investigation. She said, however, that the intelligence community’s assessment could continue. The Justice Department’s Thursday filing shed light on how the two endeavors are intertwined.
“The injunction against using classified records in the criminal investigation could impede efforts to identify the existence of any additional classified records that are not being properly stored – which itself presents the potential for ongoing risk to national security,” the DOJ said Thursday.
The prosecutors pointed to the empty folders marked with “classified banners” that had been found at Mar-a-Lago in the search.
“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,” the DOJ said.
The prosecutor described the intelligence community review that Cannon was allowing to proceed as just “one facet of the overall effort by the government to respond to and mitigate any risks to national security.” For instance, determining the “likelihood that improperly stored classified information may have been accessed by others and compromised” is a “core aspect of the FBI’s criminal investigation,” the prosecutors added.
“Departments and agencies in the IC would then consider this information to determine whether they need to treat certain sources and methods as compromised,” the prosecutors said.
Pushback to executive privilege playing a role with classified documents
Cannon had also ordered that the independent review look for documents potentially covered by executive privilege – in addition to the attorney-client privilege concerns that are usually a special master’s focus.
The move, described as novel by both the Justice Department and outside legal experts, stands to protract the review as the criminal investigation remains hindered by Cannon’s injunction.
In requesting that the criminal investigators be allowed to access to the classified documents, the Justice Department on Thursday rejected the idea that the privilege could ever apply to classified materials.
“Supreme Court precedent makes clear that any possible assertion of privilege that Plaintiff might attempt to make over the classified records would be overcome by the government’s “demonstrated, specific need” for that evidence,” the department said, while quoting the 1974 case United States v. Nixon. “Among other things, the classified records are the very subject of the government’s ongoing investigation.”
The department also took swipes at how Cannon’s order cited a recent Supreme Court order, along with a concurring statement from Justice Brett Kavanaugh, in justify her move to have the review cover executive privilege. The case in question involved Trump White House records sought by a congressional committee, the department noted Thursday.
“Neither the Supreme Court’s opinion denying Plaintiff’s request for a stay in Thompson nor Justice Kavanaugh’s concurring statement suggested that a former President can successfully assert executive privilege to prevent the Executive Branch itself from reviewing and using its own records,” the filing said.
Trump filed the lawsuit seeking the special master two weeks after the search warrant was executed on his Mar-a-Lago residence and resort. According to submissions the Justice Department made to the magistrate judge who approved the warrant, the FBI is investigating potential violations of the Espionage Act, criminal mishandling of government documents and obstruction of justice.
Cannon has ordered the Justice Department and Trump’s lawyers to file legal briefs laying out their proposed candidates to serve as special master, along with recommendations for how the review should proceed. The judge on Thursday instructed that the parties, in the joint submission due Friday, “consider Defendant’s position as to the approximately 100 documents” referred to in the request filed by the DOJ.
Additionally, the judge has ordered Trump to file a formal response by 10 a.m. Monday to the Justice Department’s request that the judge suspend parts of her special master order while the appeal proceeds.
The prosecutors told Cannon that if she did not grant their request to suspend parts of her ruling by September 15, they’d seek the intervention of the 11th US Circuit Court of Appeals.
This story has been updated with additional details.