Justice Department lawyers told U.S. District Judge Aileen M. Cannon that if she does not grant them their requested stay by Sept. 15, they would file their appeal in the 11th Circuit Court of Appeals in Atlanta.
Cannon on Monday granted a request from Trump to appoint a special master to review the seized documents, telling prosecutors they could not use the material until it was reviewed. Her decision slowed — at least temporarily — the Justice Department’s high-profile investigation into the possible mishandling of classified information held at the former president’s Florida residence and club, as well as the possible hiding, tampering or destruction of government records.
The Washington Post reported Tuesday that among the documents seized by the FBI was one describing a foreign government’s military defenses, including its nuclear capabilities, according to people familiar with the situation who spoke on the condition of anonymity. The people also said some of the seized documents detail top-secret U.S. operations that are so closely guarded that many senior national security officials are kept in the dark about them.
In separate court filings Thursday, prosecutors signaled their intent to appeal Cannon’s order and asked her to temporarily suspend two key parts of it: her decision that both classified and unclassified documents should be reviewed by the special master, and that FBI agents and prosecutors may not access even the classified documents for their criminal probe until that review is complete.
Ultimately, the Justice Department said that a special master could be appointed to review personal documents and some other items seized by FBI agents on Aug. 8 in a court-approved search of Mar-a-Lago, setting aside materials as necessary.
But prosecutors argued that Cannon should prohibit the special master from reviewing classified documents — and should restore investigators’ access to those documents right away. The special master would be still able to sort through personal documents and other items the FBI also seized, setting aside materials as necessary, the filing says.
Barring the FBI from using the classified material in the investigation, even temporarily, “could impede efforts to identify the existence of any additional classified records that are not being properly stored — which itself presents the potential for ongoing risk to national security,” prosecutors wrote.
It was the first time they have suggested in court filings that there could be more unsecured classified material the government has yet to locate.
Cannon asked Trump’s lawyers to respond the Justice Department request by 10 a.m. Monday, and told both sides to “consider” the pending request as they work to meet a Friday deadline to submit a list of potential special master candidates and a schedule for that person to review the seized documents.
Allowing a special master to review the classified material would “cause the most immediate and serious harms to the government and the public,” prosecutors wrote in their filing, noting that those seized documents have already been moved to a secure facility, separate from the rest of the seized Trump papers.
FBI Assistant Director Alan E. Kohler submitted a declaration saying that Cannon’s prohibition on investigators using the seized classified material could prevent them from understanding what may have happened to the significant number of empty folders found with classified markings.
The existence of those empty folders was made public last week, when a more detailed list of what the FBI took in the search was unsealed.
The FBI’s investigation, Kohler wrote, “could be instrumental in determining what materials may once have been stored in those folders and whether they may have been lost or compromised.”
Trump’s legal team argued in a federal courthouse in West Palm Beach last week that a special master is needed to determine whether any of the documents — more than 100 of which are classified — should be shielded from investigators because of attorney-client or executive privilege. They also said an independent outside expert would boost “trust” in the Justice Department’s criminal probe.
In response, Justice Department lawyers told Cannon they had already sorted through the documents, using a “filter team” to separate out more than 500 pages of documents potentially covered by attorney-client privilege.
That arrangement was approved by the U.S. magistrate judge who authorized the search warrant for Mar-a-Lago, after the government tried for months to get Trump and his advisers to return all the government documents kept at the property.
The Justice Department also argued that a former president cannot assert executive privilege after he leaves office, and that it is not possible for one part of the executive branch to assert privilege to shield documents from another part.
But even if Trump could assert executive privilege, the Justice Department argued in its Thursday filing, the government’s “demonstrated, specific need” to have access to the classified materials would override that privilege. Government prosecutors also said that Trump had no clear need to maintain possession of these classified documents.
“Among other things, the classified records are the very subject of the government’s ongoing investigation,” the filing says.
In her original ruling, Cannon said that the Office of the Director of National Intelligence could continue its analysis of the possible risk to national security posed by the removal from government custody of classified documents, some of which contain the government’s most sensitive intelligence-gathering secrets.
But Justice Department lawyers said Thursday said that it is difficult to separate the FBI investigation from the intelligence review. They said they were unsure of the “bounds” and “implications” of the court order, and their uncertainty had forced the intelligence community to temporarily halt its review of the classified material even though the judge said that review could proceed.
Beyond the issue of access to the classified documents, a broader appeal of Cannon’s decision would carry its own legal risks for the Justice Department.
For one thing, the appeals process could take longer than any document review by the special master. And there is no guarantee that the government would prevail, particularly if the case were to reach the Supreme Court, which has a 6-3 conservative majority that includes three Trump appointees.
Ann E. Marimow contributed to this report.
