The Department of Justice (DOJ) on Friday asked an appeals court to partially block the court-appointed “special master” duties of senior Judge Raymond Dearie to review documents the FBI seized from Mar-a-Lago.
This comes one day after U.S. District Judge Aileen Cannon tasked Dearie with independently reviewing the documents taken in August from the Florida estate of former President Donald Trump.
Part of Dearie’s duties is to determine whether any materials are privileged and should be off-limits to federal investigators. The district judge’s ruling also rejected the DOJ’s bid to revive its criminal investigation into the classified documents.
The DOJ says this part of the order “hamstrings” the government’s efforts to determine any “possible unauthorized disclosures” of top secret or classified materials that posed a national security risk.
In court filings lodged with the 11th U.S. Circuit Court of Appeals, the DOJ described the ruling as an “unprecedented order” and argued that it “fundamentally erred in appointing a special master and granting injunctive relief.”
The DOJ asked the appeals court to stay, or put a hold on, “only the portions of the order causing the most serious and immediate harm to the government and the public.”
According to court filings, those portions of the order include the parts “restricting the government’s review and use of records bearing classification markings,” and also the parts “requiring the government to disclose those records for a special-master review process.”
Classified Records
Trump has maintained he did no wrong in how he handled classified materials. He has repeatedly stated that, as president, he had a standing declassification order on materials that left the Oval Office and were taken to Mar-a-Lago.
The DOJ on Friday told the appeals court that Trump “has no claim” for the return of records with classification markings, and wants these excluded from the scope of Dearie’s special master review process.
Such records, the DOJ said, could not be subject to “any possible claim of personal attorney-client privilege” and further, the department argued they “belong to the government and were seized in a court-authorized search.”
The DOJ has previously argued that Trump can’t prevent the current executive branch of government from accessing presidential records that he may claim executive privilege over.
However, in appointing a special master, the district court rejected DOJ arguments that because Trump is no longer president he cannot claim executive privilege.
But the DOJ argued in its latest filing that any “possible assertion of executive privilege over these records would be especially untenable.”
The department said such executive privilege “would be overcome by the government’s ‘demonstrated, specific need’ for them … because they are central to its ongoing investigation.”
Criminal Investigation Crippled by Ruling
Without the stay, investigations into whether there was a national security risk “from the possible unauthorized disclosure of the records bearing classification markings” would be crippled, according to the DOJ.
“The court’s order hamstrings that investigation and places the FBI and [DOJ] under a Damoclean threat of contempt should the court later disagree with how investigators disaggregated their previously integrated criminal-investigative and national-security activities,” the DOJ’s filing reads.
“It also irreparably harms the government by enjoining critical steps of an ongoing criminal investigation and needlessly compelling disclosure of highly sensitive records, including to Plaintiff’s counsel.”
Trump and other Republicans have accused the FBI of targeting him for political reasons as he mulls running for president again in 2024.
Dearie’s ‘Special Master’ Review
The DOJ, meanwhile, doesn’t think its request for a stay would get in the way of Dearie’s special master review of “other materials,” such as any records potentially subject to attorney-client privilege.
Dearie’s special master review process will include verifying that items identified in the “Detailed Property Inventory” represents the “full and accurate extent” of the property seized, which may include obtaining sworn affidavits from DOJ personnel, according to court documents.
As special master, Dearie will regularly update the court on his review of documents for their privilege status, either personal attorney-client privilege or executive privilege, and any disputes between the parties.
Dearie is furthermore assigned to identify personal documents and items, as well as presidential records, and recommend to the court regarding any categorization disputes.
Putting a hold on parts of the district court’s order wouldn’t “infringe any interest in confidentiality” because the government’s “criminal investigators have already reviewed the records bearing classification marking,” according to the DOJ, which noted that the Intelligence Community may continue to review the seized materials for “certain national-security purposes” under the district court’s order.
The DOJ asked the appeals court to act “as soon as practicable” on their request.
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