The Justice Department filed a notice Thursday saying it will appeal a court ruling siding with former President Donald Trump’s request for an appointment of an outside review of documents seized during the FBI raid of his Mar-a-Lago resort in August.
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The move centers on the push for a special master, typically an attorney, who is a third party who, in this case, would be tasked with filtering out privileged material from the trove of materials. On Monday, U.S. District Court Judge Aileen Cannon, a Trump appointee, approved the special master request, effectively adding a substantial roadblock to the Justice Department’s criminal investigation into Trump’s handling of documents after leaving office.
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“In this matter, to effectuate the [intelligence community’s] classification review, the FBI must be able to access the evidence,” said an accompanying declaration of support for an appeal signed by FBI Counterintelligence Deputy Chief Alan Kohler Jr. “Such review, as noted, will enable the Government to assess the potential harms to national security resulting from any improper retention and storage of classified information.”
Federal prosecutors contend that the inquiry is tied to pressing national security concerns. The appeal will be made to the 11th Circuit Court of Appeals, according to the notice. Additionally, the DOJ is seeking a partial stay on Cannon’s ruling for a special master, arguing “it is likely to succeed on the merits” of its appeal.
“The government seeks a stay to the extent the Order (1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings that were recovered pursuant to a court-authorized search warrant and (2) requires the government to disclose those classified records to a special master for review,” a filing for a partial stay said.
If she does not agree to the stay request by Sept. 15, the DOJ will take the matter up with the appeals court, according to the filing.
The declaration of support for an appeal highlighted empty folders with classified markings seized in the raid and stressed that agents need access to the evidence amassed to determine if classified material was compromised or went missing.
The Office of the Director of National Intelligence paused its assessment of national security risks in the document stash due to “uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI,” per the declaration.
This comes after Cannon specifically stated in her ruling Monday that “the Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.”
Lawyers for Trump agreed in court that “it would be appropriate for the special master to possess a Top Secret/SCI security clearance” to review the documents.
Attorneys for Trump argued the FBI confiscated materials with privileged material in a petition to Cannon, who is a judge in the U.S. District Court for the Southern District of Florida.
In a lengthy rebuttal to Trump’s petition, the DOJ argued a special master would “significantly harm important governmental interests, including national security interests.”
DOJ officials have conceded they have identified a “limited set” of materials that may have privileged attorney-client information but emphasized an in-house “Privilege Review Team” has been examining the Mar-a-Lago stash.
In her ruling, Cannon also indicated a special master could evaluate if documents were under the umbrella of executive privilege claims — something the DOJ contended was not a factor because President Joe Biden deferred the disputes over the document matter to the national archivist.
“The Court appeared to recognize that a sufficient showing of need can overcome potential assertions of executive privilege by specifying that the government may continue to review and use the classified records in its classification review and national security risk assessment,” the stay filing argued.
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FBI agents collected 26 boxes of material and over 100 documents with classified markings during its search and seizure that sent shock waves across the political stratosphere. Documents confiscated ranged from “CONFIDENTIAL to TOP SECRET information,” per the DOJ. They are investigating possible violations of the Espionage Act and obstruction of justice, per an unsealed warrant for the August raid.
Trump has adamantly denied wrongdoing and claims he declassified the documents brought to his Mar-a-Lago club in Florida. He has disparaged the raid as an “unAmerican break-in” and a “witch hunt.”
