The Department of Justice intends to appeal a federal judge’s decision to grant former President Trump’s request for a special master to review documents seized by the FBI from his Florida home, and to temporarily halt its use of the records for investigative purposes.
The Justice Department notified U.S. District Judge Aileen Cannon on Thursday that it will appeal to the 11th Circuit Court of Appeals. In a separate filing asking Cannon to stay part of her decision, the Justice Department says it will appeal if Cannon does not modify her order by Sept. 15.
On Monday, Cannon decided to approve an outside legal expert to review the more than 11,000 records and materials taken during a court-approved Aug. 8 search of Trump’s Mar-a-Lago estate and to weed out from the rest of the investigation any materials that might be protected by claims of attorney-client privilege or executive privilege. She agreed to allow a national security review of the documents to continue, but enjoined the Justice Department from using the materials until the special master’s review is complete.
The Justice Department has said a special master is not necessary, in part because officials had already completed their review of documents potentially subject to attorney-client privilege. In Thursday’s filing, it said separating the criminal investigation from a national security review — both of which would see the FBI play a leading role — is unworkable. Halting the federal criminal probe into the former president’s handling and storage of classified materials would result in “irreparable harm,” the department said in the filing.
The department asked Cannon to stay part of her decision and allow it to continue to access the about 100 classified documents found in the search for its criminal investigation while the special master reviews the nonclassified materials. It also asked that she not instruct the special master to review the classified materials.
The special master review could take several weeks, and finding a person with the right legal background and security clearances is expected to add to that time.
Trump has no claim of privilege over classified material, the filing states.
“Plaintiff does not and could not assert that he owns or has any possessory interest in classified records; that he has any right to have those government records returned to him; or that he can advance any plausible claims of attorney-client privilege as to such records that would bar the government from reviewing or using them,” the department said in the filing.
Restricting the department’s access to the classified documents “will cause the most immediate and serious harms to the government and the public,” the department said in its filing, adding that the national security review being done by the intelligence community is inextricably linked to the criminal investigation, in part because of the FBI’s enhanced post-9/11 role in investigating internal threats.
“Uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI has caused the Intelligence Community, in consultation with DOJ, to pause temporarily this critically important work,” the department said in the filing.
The department also said it is particularly urgent that the FBI be permitted to help investigate the dozens of empty folders with classification markings found at Mar-a-Lago to determine what they once held and whether their contents “may have been lost or compromised.”
“The FBI would be chiefly responsible for investigating what materials may have once been stored in these folders and whether they may have been lost or compromised—steps that, again, may require the use of grand jury subpoenas, search warrants, and other criminal investigative tools and could lead to evidence that would also be highly relevant to advancing the criminal investigation,” the department said in its filing.
Cannon instructed Trump’s legal team and the government to provide a list of potential special master candidates by Friday. The department said in its filing that along with the candidate names, it also plans to make copies of the thousands of unclassified documents recovered during the search — both personal records and government records — available to Trump, and that the government will return personal items that were “not commingled with classified records and thus are of likely diminished evidentiary value.”
The department’s filing noted that Trump’s legal team opposed the stay. In a Truth Social post Thursday, Trump decried the time and money the department would spend appealing the order “by a brilliant and courageous Judge whose words of wisdom rang true throughout our Nation.”
Cannon was appointed by Trump after he lost the 2020 election.
