The Justice Department asked a judge to hold off on enacting key parts of her order, including a temporary ban on its ability to use files seized from former President Donald J. Trump in its inquiry.
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The Justice Department is barred for now from using a trove of documents seized in a search of former President Donald J. Trump’s Mar-a-Lago residence and club in Florida.
WASHINGTON — The Justice Department asked a federal judge on Thursday to revisit her decision to temporarily stop prosecutors from gaining access to classified documents seized from former President Donald J. Trump’s Florida home, arguing that her ruling has already hindered the government’s effort to determine whether national security had been compromised.
In a set of filings, lawyers for the department announced their intention to appeal key parts of Judge Aileen M. Cannon’s ruling. They cautioned that they would move ahead with asking an appeals court to formally do the job of blocking those sections of Judge Cannon’s ruling if she did not agree to do so herself by next Thursday.
Her order, issued on Monday, has prevented the department from using the documents in its investigation of Mr. Trump, including some marked as highly classified, that the F.B.I. took from the former president’s resort, Mar-a-Lago, during a court-authorized search on Aug. 8.
In its complicated 21-page filing, the government also asked Judge Cannon to exempt “classified records — a discrete set of just over 100 documents” from her order to allow the national security analysis and investigation to proceed. Prosecutors say it is crucial they be allowed to work with the documents in order to assist a risk assessment of materials being conducted by the Office of the Director of National Intelligence.
In her order, Judge Cannon said she would appoint an independent arbiter, known as a special master, to sift through the seized documents. The government did not contest that appointment, but is seeking to limit the arbiter to reviewing thousands of unclassified documents.
“The government is likely to succeed in its appeal of the order as it applies to classified records,” attorneys from the department’s national security division wrote in requesting a partial stay of the ruling.
Mr. Trump has no right under the law to assert that “he owns or has any possessory interest in classified records,” they added. The department also dismissed the potential argument that Mr. Trump could request to have classified materials withheld from the government under attorney-client privilege or executive privilege, citing Supreme Court precedents.
Judge Cannon, in her ruling, left open the possibility that Mr. Trump’s legal team could contest the seizure of some materials based on an assertion of executive privilege. But the department, in its filing, noted that Mr. Trump “himself declined to assert any claim of executive privilege over the classified records” found at Mar-a-Lago after a grand jury issued a subpoena for them in May.
The department is still required to confer with Mr. Trump’s lawyers to produce a list of potential arbiters to the court by Friday, unless the judge extends the deadline she imposed earlier this week. The government intends to do so, provided it could come to an agreement with Mr. Trump’s team, a department spokesman said.
More on the Trump Documents Inquiry
- Special Master: A judge granted former President Donald J. Trump’s request for an independent arbiter, known as a special master, to review the documents the F.B.I. seized from Mar-a-Lago. The ruling surprised experts and could slow the investigation.
- Justice Dept. Response: The Justice Department asked the judge to hold off on enacting key parts of her order, including a temporary ban on its ability to access classified documents seized from Mr. Trump’s home.
- Judge Aileen Cannon: This judge, who granted the special master request, had worked mostly in obscurity since being appointed. The first highly scrutinized ruling of her so-far short judicial career involved the person who put her on the bench: Mr. Trump.
Under Judge Cannon’s ruling, prosecutors are barred from using the trove of documents they retrieved in the search of Mar-a-Lago for further investigation pending the completion of a review by the arbiter. The Justice Department is looking at whether the presence at Mar-a-Lago of documents carrying high levels of classification violated laws including the Espionage Act and whether efforts by Mr. Trump and his aides to hold onto them amounted to obstruction.
The ruling allowed the intelligence agencies to continue assessing the potential risks to national security caused by the insecure storage of highly classified documents around Mr. Trump’s private club and residence.
But the government, in forceful and foreboding language, argued that determining the national security implications of Mr. Trump’s retention of the documents was so intertwined with the department’s criminal investigation it made carrying out the risk assessment impossible under the conditions imposed by the court.
In an affidavit accompanying the filing, Alan E. Kohler Jr., the assistant director of the F.B.I.’s counterintelligence division, wrote that the intelligence community’s assessment of the classified material was “inextricably linked with the criminal investigation.”
The Justice Department lawyers wrote that “uncertainty regarding the bounds of the court’s order and its implications for the activities of the F.B.I. has caused the intelligence community, in consultation with D.O.J., to pause temporarily this critically important work.”
The government and the public, the department added, “are irreparably injured when a criminal investigation of matters involving risks to national security” was frozen or delayed.
The filing was unsparing in its criticism of the ruling, and tried to place the onus back on Judge Cannon, a conservative who was appointed the bench in late 2020 by Mr. Trump.
And it creates a richer factual record in the case that could later be used in the appeal by introducing what the department said was the impediment it created to carrying out the national security risk assessment.
Notably, the government did not file a motion to reconsider, a formal request for the judge to reverse her ruling. Such motions are notoriously hard to win, in part, because they essentially ask judges to acknowledge they were wrong in making an earlier decision, and to switch course in a highly visible manner.
The appointment of a special master is more likely to delay than derail the investigation into Mr. Trump’s handling of highly classified documents.
Yet the legal and constitutional stakes are high. Attorney General Merrick B. Garland and other senior department officials have been wrestling with the dilemma of whether to let the order stand to minimize the delays the special master’s review would impose on the investigation, or to appeal a ruling they believe is wrong about the law and should be reversed — at the cost of opening the door to significantly longer delays to the case.
Advisers to Mr. Trump are already proceeding as if the appointment of the special master were an accomplished fact and have begun considering several potential candidates who would be acceptable to the court, including former judges, according to a person familiar with the situation.
Mr. Trump’s legal team did not immediately comment on the government’s filing.
Separately, the Justice Department has obtained permission from a different federal judge in Washington to disclose more information about subpoenas that were issued this summer to the Trump Organization for documents marked as classified and surveillance camera footage at Mar-a-Lago.
An order unsealed this week showed that the judge overseeing grand juries in the District of Columbia authorized prosecutors to discuss the subpoenas, whose existence has already been acknowledged in litigation by Mr. Trump’s legal team.
At the time, prosecutors were trying to use a grand jury subpoena to retrieve the remaining documents marked as classified at Mar-a-Lago. They were also seeking to determine whether any materials had been removed from a storage closet at the property and wanted the footage to see who had access to the room.
Discussion of those subpoenas were included in the affidavit used to obtain the warrant to search Mar-a-Lago. The Justice Department is seeking to release more of that affidavit that had been redacted in an earlier disclosure, but it first needs permission from the magistrate judge in Florida who signed the warrant.
Source: nytimes.com
