The Justice Department officially appealed the appointment of the special master, who is overseeing the review of documents seized from former President Donald Trump’s Mar-a-Lago estate, in a brief filed with the 11th Circuit Court of Appeals on Friday.
The Justice Department centered their brief on sweeping criticism of lower court Judge Aileen Cannon’s actions, arguing she had no authority to interfere with their federal criminal investigation. The Justice Department is asking the federal appeals court to invalidate Cannon’s order and end the special master’s review of documents.
“District courts have no general equitable authority to superintend federal criminal investigations,” the brief said. “[I]nstead, challenges to the government’s use of the evidence recovered in a search are resolved through ordinary criminal motions practice if and when charges are filed. Here, however, the district court granted the extraordinary relief Plaintiff sought….”
The Justice Department also argued that Trump had no basis to interfere with the review of executive branch documents by the Justice Department, which itself is part of the executive branch.
Plus, department attorneys pointed out that Trump never made any claim of attorney-client privilege over the 11,000 documents taken from Mar-a-Lago in August that would have justified the appointment of a special master. The Justice Department argued that the filter procedures it has already employed were sufficient to shield any sensitive documents from investigators’ review.
“[Trump] has no plausible claim of such a privilege with respect to the records bearing classification markings or any other government documents related to his official duties,” the Justice Department brief said.
The Justice Department said all of the documents seized from Mar-a-Lago could be evidence of crimes.
The department argued investigators need access to the classified documents given they are looking at the potential crime of unauthorized retention of national defense information and also to be able to assess the potential risk to national security if it was disclosed. The department said investigators need access to the unclassified documents because they could be evidence that government records were unlawfully concealed or removed.
The federal appeals court granted the department’s request last month to block certain aspects of an order from Cannon. This appeal contests the entire order from Cannon, who granted Trump’s request to designate a third party to review the documents seized from his Florida estate.
The special master – Raymond Dearie, a senior federal judge based in Brooklyn – has already started the process for the review. If the department is ultimately successful in its appeal, the special master could be ordered to halt the review process.
This appeals process, however, will take at least several weeks. While a federal judge did grant the department’s request to expedite the appeal, Trump’s legal team still has until November 10 to file a response, and the 11th Circuit will not schedule oral arguments until after the department files a subsequent reply on November 17.
As it stands now, the special master’s review must be complete by December 16, a timeline set into motion by Cannon, a Trump appointee.
After the 11th Circuit stepped in last month to allow the Justice Department access to about 100 of the documents marked classified, Trump filed an emergency request asking the Supreme Court to intervene in that dispute. On Thursday, the high court refused his request.
The Supreme Court’s decision not to intervene means that, for now, the classified documents will stay out of the reach of the special master.
The department, in its Supreme Court filing, had argued that the 11th US Circuit found that Cannon “abused her discretion” and inflicted “a serious and unwarranted intrusion on the Executive Branch’s authority to control the use and distribution of extraordinarily sensitive government records.”
The DOJ says the seized documents taken from Mar-a-Lago during the FBI search amount to 21,792 pages. The collection excludes materials seized by the FBI that have already been filtered out for privacy and the 100 documents marked as classified found in the search.
There’s been a years-long pursuit from the National Archives and Records Administration, or NARA, to reclaim all records that belong to the federal government that were created during the Trump administration.
NARA’s back-and-forth with Trump and his liaisons led earlier this year to the return of boxes and envelopes full of records by former administration officials and lawyers. NARA’s findings in one of those collections prompted a Justice Department investigation into the mishandling of classified records and August’s search of Mar-a-Lago. NARA has said that certain presidential records from the Trump administration remain outstanding, citing information that some White House staff used non-official electronic systems to conduct official business.
The DOJ’s appeal of the appointment of a special master comes days after CNN reported that a Trump employee told the FBI about being directed by the former President to move boxes out of a basement storage room to his residence at Mar-a-Lago – after Trump’s legal team received a subpoena for any classified documents at the Florida estate.
The Trump employee initially denied handling sensitive documents or boxes at Mar-a-Lago, according to the source. But the FBI developed evidence that prompted investigators to go back to the witness, who revised their story to say Trump had given instructions to move the boxes, the source said.
The witness account of Trump’s actions after the subpoena was served in May coupled with the footage could be key to the federal criminal investigation that’s looking into a range of potential crimes, including obstruction, destruction of government records and mishandling of classified information.
The Department of Justice has previously alleged that classified documents at the resort were “likely concealed and removed” from a storage room at Mar-a-Lago as part of an effort to “obstruct” the FBI’s investigation into Trump’s potential mishandling of classified materials.
This is a breaking story and will be updated.
CNN’s Pamela Brown, Katelyn Polantz, Ariane de Vogue and Whitney Wild contributed to this report.