The Justice Department on Friday asked a federal court for access to classified documents seized last month from Mar-a-Lago, appealing a lower court ruling that’s barred prosecutors from using those materials while investigating former President Trump’s handling of government records.
In a new motion to the U.S. Court of Appeals for the 11th Circuit, DOJ officials said the materials taken from Trump’s South Florida estate include highly sensitive documents, and that denying prosecutors immediate access to those records would delay their investigation at a heightened risk to national security.
“By enjoining the review and use of the records bearing classification markings for criminal-investigative purposes, the district court’s order impedes the government’s efforts to protect the Nation’s security,” the filing reads.
Citing “irreparable injury” to both the government and the public, the DOJ is asking the appeals court to rule “as soon as practicable.”
The move was no surprise.
After a Trump-appointed federal judge had ruled in favor of the former-president earlier in the month, blocking the DOJ’s access to the disputed documents, the department said it would appeal to a higher court if the decision was not partially reversed. The judge, Aileen Cannon, denied the motion on Thursday evening, triggering the DOJ’s appeal to the 11th Circuit in Atlanta, where six of the 11 justices were nominated by Trump.
While the DOJ’s arguments to the appellate court are nearly identical to those presented to Cannon, prosecutors are hoping for a different outcome from a different audience. Their reasoning leans heavily on the idea — supported by legal precedents and federal law — that virtually all presidential records are the property of the government, to be turned over to the National Archives at the end of one’s tenure.
“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,” prosecutors wrote.
The appeal is the latest legal salvo in a weeks-long battle between Trump and the Biden administration over which party — the government or the former president — has lawful rights to more than 11,000 documents the FBI seized from Mar-a-Lago on Aug. 8. Roughly 100 of those were labeled confidential, to some degree, and one was related to the military capacity of an unnamed foreign government, including its nuclear defenses, according to The Washington Post.
The extraordinary search followed months of fragile negotiations between the two sides, as well as assurances from Trump’s lawyers that any government materials stored at the Florida compound had been returned to the Archives earlier in the year.
The process is a delicate one for the DOJ, not only because the investigation targets a former president, but also because Trump is eyeing another run at the White House in 2024. He and his supporters say the Biden administration is simply conducting a political witch hunt to damage his prospects.
With its new filing, the DOJ is seeking to overturn a series of decisions passed down this month by Cannon, who was among the last of Trump’s judicial nominees to be confirmed, following his election defeat.
In her initial ruling on Sept. 5, Cannon had granted Trump’s request for an independent arbiter, known as a special master, to sift through the seized materials. Until that review is complete, Cannon ruled, federal prosecutors may not use the sensitive documents in their criminal probe. She said the government’s central argument — that Trump, as a former president, has no right to claim executive privilege — “arguably overstates the law.”
Three days later, the DOJ had requested a partial reversal of that decision, asking Cannon to allow the agency access to the roughly 100 confidential documents to guide the most urgent part of its investigation. The special master could remain, the department proposed, but with access only to the unclassified materials.
“[Trump] does not and could not assert that he owns or has any possessory interest in classified records,” the DOJ wrote in that Sept. 8 filing.
In denying that request, Cannon said she had no way of knowing if the classified documents were indeed classified, as the DOJ asserted. She also rejected the idea that Trump has no legal right to executive privilege.
“The court does not find it appropriate to accept the government’s conclusions on these important and disputed issues,” she wrote Thursday, “without further review by a neutral third party in an expedited and orderly fashion.”
In a carve out, Cannon had allowed federal intelligence agencies to have continued access to the documents to conduct a separate damage assessment. But the DOJ said the two parallel probes were “inextricably linked.” As a result, even the security assessment is on hold “temporarily” while the court fight plays out.
How long that takes remains unclear.
Cannon’s ruling on Thursday stipulated that the special master would have until Nov. 30 to complete the job — a shorter window than Trump had requested, but much longer than the mid-October deadline the DOJ had proposed.
That could push any final resolution until after the midterm elections, although many legal experts critical of Cannon’s reasoning — including Trump’s former Attorney General Bill Barr — are predicting the 11th Circuit would move swiftly in siding with the DOJ.
“I don’t think it’s going to take very much to overturn it,” George Conway, a prominent conservative attorney, told CNN Thursday night, referring to Cannon’s latest ruling. “This opinion is absolutely atrocious.”
Cannon’s latest ruling also named the figure who will assume the special master role: Raymond Dearie, a New York-based federal district judge, appointed by President Reagan, who still serves in that role on a limited basis. Dearie also served for seven years on the U.S. Foreign Intelligence Surveillance Court, known as FISA, which oversees wiretapping and other highly secret government programs targeting subjects overseas.
Proposed by Trump’s team, Dearie was the sole figure, among four candidates, both sides had endorsed.
Cannon has instructed Dearie to prioritize the confidential materials and then “consider prompt adjustments to the court’s orders as necessary.” That stipulation was a potential, if rare, victory for the DOJ in its fight with Cannon, seeming to empower Dearie to clear those 100 documents for the FBI’s use immediately after his review.
Dearie has asked lawyers for both camps to meet with him on Tuesday in New York to launch the process.
— Updated at 9:47 p.m.