The Justice Department on Friday asked an appeals court to put on hold parts of a judge’s ruling that required a third-party review of materials seized last month at Mar-a-Lago.
In its request to the 11th U.S. Circuit Court of Appeals, the Justice Department said the lower court’s move to block criminal investigations from reviewing seized documents marked classified would cause irreparable harm, writing that “a criminal investigation is itself essential to the government’s effort to identify and mitigate potential national security risks.”
The department sought the intervention after U.S. District Judge Aileen Cannon on Thursday rejected a request by prosecutors to be allowed to reopen their criminal investigation into the classified documents.
“The court’s order impedes the investigation and places the FBI and the Department of Justice (DOJ) under a Damocles threat of contempt if the court later disagrees with how investigators are analyzing their prior integrated criminal-investigative and national intelligence activities. security,” the Ministry of Justice wrote. .
The Justice Department is also asking the appeals court to exempt documents marked as classified from the so-called special master review ordered by Cannon. Noting that Cannon’s order would require those documents to be provided to Trump’s lawyers, prosecutors said there is “no basis for disclosing such sensitive information” and that the order required them to make “disclosure of highly sensitive material to a special master and to plaintiff counsel — possibly including witnesses to relevant events — in the midst of an investigation where no charges have been filed.”
The Justice Department on Friday asked the 11th Circuit to take action “as soon as possible.”
The new filing with the 11th Circuit speeds the dispute over the Mar-a-Lago investigation all the way to the appeals court and raises the possibility that the U.S. Supreme Court may also be asked to consider it in the coming weeks.
The Justice Department originally sought the search warrant at Mar-a-Lago after months of negotiations with Trump’s team over documents moved from his White House to the Florida resort after he left office. The FBI is investigating at least three potential crimes as part of its investigation: violations of the Espionage Act, tampering with government records and obstruction of justice.
In her order Thursday night rejecting the Justice Department’s offer to continue its criminal investigation, Cannon disputed that the 100 or more documents in question were actually classified, concluding that the question was moot and that it was best to checked by an independent party.
He also rejected Justice Department arguments that his suspension of the criminal investigation endangered national security. This approach contrasts with awarding courts that typically show the government classification and national security claims.
In their request to the 11th Circuit, prosecutors said the lower court ignored evidence they had presented about the risks posed by how government records are stored.
The record, they said Friday, “makes it clear that the materials were stored in an unsafe manner for an extended period of time, and the court order itself prevents the government from taking the necessary steps to determine whether improper disclosures may have occurred.”
Bans on criminal investigation, prosecutors said, undermined the intelligence community’s ability to “assess the harm that would result from disclosure of the seized records.”
“The court’s order restricts the FBI — which has primary responsibility for investigating such matters in the United States — from using the seized records in its criminal-investigative tools to assess what records were actually disclosed, to whom, and to what circumstances,” the Justice Department told the appeals court.
Cannon also concluded that the classification designations were dubious without the Trump team presenting the kind of evidence — such as depositions — that would suggest the materials were not, in fact, classified. Trump has claimed in media appearances that he declassified the documents he took to Mar-a-Lago, but his lawyers have yet to make that claim in court.
Cannon has repeatedly acknowledged in court rulings that her reasoning is based in part on Trump’s status as a former president, writing Thursday that “principles of justice” required her to “consider the particular context and that consideration is inherently influenced by a position that previously owned by the Plaintiff”.
In their appeal to the 11th Circuit, the Justice Department wrote that none of the 100 documents marked as classified could possibly be Trump’s personal records — a type of claim he is trying to make to keep some of the documents out of the evidence. .
“None of these recitals apply to records marked with a classification: The markings demonstrate on the face of the documents that they are not [Trump]his personal property,” the department says.
The case is now before a district court where six of the 11 active judges are Trump appointees. It will go to a panel of three randomly selected judges from the court. A panel that includes some of the former president’s handpicked appellate judges could still be sympathetic to the Justice Department, given the deference the administration usually gets when it says national security is at risk.
There is also skepticism among outside legal observers about Cannon’s decision to intervene in the first place, given that a separate judge in Florida authorized the search warrant and the investigation itself is being exhausted by a grand jury in DC.
Cannon — a 2020 appointee of then-President Trump — accidentally received the lawsuit Trump filed two weeks after the FBI executed the search warrant.
The Justice Department has argued that Trump’s efforts to claim privilege are weak — if he has made any at all.
“Neither [Trump] nor has the court suggested that they might be subject to attorney-client privilege. [Trump] never even attempted to make or substantiate any claim of executive privilege. Even if it did, no such claim could justify limiting the Executive Committee’s review and use of these records for several independent reasons.”
The Justice Department also disputes that Trump went to court to try to block investigators from accessing classified records seized from Mar-a-Lago and Cannon’s intervention.
Trump “does not have standing at least as to the distinct set of classified records because those records are government property over which the executive branch has sole control and in which Plaintiff has no property interest,” the DOJ writes .
Government lawyers say courts can only get involved in exceptional circumstances, such as when constitutional rights are violated in an investigation or when a subject of the investigation has a special need to keep seized material, and that “it cannot be extended to those records.”
“The district court reasoned that other materials in which Plaintiff [Trump] may have an identifiable interest cannot be easily separated from those in which it does not. But this rationale does not apply to classified records, which are readily identifiable and have already been separated from other seized materials,” the department writes.
This story has been updated with additional details.
