Washington — The Justice Department filed a motion to delay a section of a federal judge’s ruling prohibiting the agency from using certain documents seized from the house of former President Donald Trump until an impartial third party evaluates the documents.
Friday, the department filed a request seeking the 11th Circuit Court of Appeals to partially stay U.S. District Judge Aileen Cannon’s decision, alleging that the U.S. District Court has the power to prohibit the FBI from studying 103 classified materials taken from Mar-a-Lago in August.
“The district court erred in asserting jurisdiction over materials with classification markings,” the Justice Department wrote in a filing late Friday night.
In addition, the Justice Department stated, “Records with classified markings are not subject to any conceivable claim of privilege that would prevent their review and use by the government.” Its reasoning is, in short, that records marked as classified cannot be subject to Trump’s claims of personal privilege.
“No factual or legal disputes justify the district court’s order as to the records bearing classification markings,” the Justice Department stated, reiterating its argument that without a partial stay allowing it to continue its investigation, “the government and the public will be irreparably harmed.”
The agency filed a notice of appeal on Thursday of last week.
Appointed to the bench by Trump, Cannon decided earlier this month that federal investigators looking into whether Trump mishandled secret documents must halt using the confiscated records in their criminal investigation until the examination of an impartial third party, a special master. Thursday, Cannon nominated U.S. District Judge Raymond Dearie as the impartial arbitrator who will assess the data, excluding personal items, documents, and information that may be susceptible to attorney-client or executive privilege claims.
In its 152-page filing, the department did not oppose the appointment of a special master, but instead focused on the government’s authority to continue investigating whether the former president mismanaged the nation’s most sensitive information. Additionally, the company maintained that it should not be required to hand over secret materials to the special master.
“Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public”
Thursday, Cannon denied the government’s request that she partially lift her own ruling so that investigators could continue reviewing 103 classified documents, stating, “The court does not find it appropriate to accept the government’s conclusions on these important and disputed issues without further review by a neutral third party in a timely and orderly manner.”
The classified documents have been separated from the remaining thousands of seized records, but the intelligence community has halted its analysis of them due to “uncertainty” caused by Cannon’s order prohibiting Justice Department investigators from examining them until the special master, U.S. District Judge Raymond Dearie, completes his review.
Prosecutors have contended that Dearie’s assessment of records with classified markings should not apply since such papers expressly belonged to the government and not to Trump.
Investigators are reviewing charges that secret information were improperly transported from the White House to Trump’s Mar-a-Lago residence following the 2021 presidential transition. The National Archives and the FBI retrieved tens of thousands of papers from the Florida resort on three separate occasions prior to the August 8 search. Prosecutors maintained in their Thursday motion that they are also investigating whether Trump or his team hindered the investigation by failing to comply with a grand jury subpoena.
Two weeks after the FBI removed 33 things from a storage room on the property and the former president’s office, Trump requested a special master. In previous filings, the Justice Department disclosed that more than 100 classified materials were discovered in 13 boxes or containers, while three documents with “confidential” and “secret” classification marks were removed from Trump’s Mar-a-Lago office.
In her Thursday order, Cannon highlighted that the FBI’s filter team had discovered medical and tax documents among the seized materials and disclosed that in two instances, potentially privileged information had made its way through the filter and into the hands of investigators. The Department of Justice has since petitioned the court to unseal a report compiled by the filter team.
Melissa Quinn, Andres Triay, and Robert Legare contributed to this report.