DOJ to Appeal Trump Special-Master Order That Halted Risk Review

·4 min read

(Bloomberg) -- The US Justice Department will appeal a federal judge’s order for a special master to review documents the FBI seized from former President Donald Trump’s Florida home, saying the ruling has thwarted a review of the potential national-security impact.

Most Read from Bloomberg

The department also is seeking emergency approval to continue using the classified materials -- including some with highest top-secret rating -- that were removed from Mar-a-Lago as part of its ongoing criminal investigation into whether Trump or anyone else improperly mishandled government records.

Federal prosecutors filed a notice of appeal with the US District Court in the Southern District of Florida on Thursday. A risk assessment being done by intelligence agencies of the classified material also has been put on hold because of confusion and inconsistencies in the ruling, the department said in a 21-page filing for an emergency stay.

“The government and the public would suffer irreparable harm absent a stay,” the department wrote. “The classified records do not contain personal information or communications protected by a personal attorney-client privilege, and any delay poses significant concerns in the context of an investigation into the mishandling of classified records.”

The move comes only days after US District Judge Aileen Cannon granted Trump’s request for a so-called special master to review materials seized on Aug. 8. She also temporarily barred the government from using the trove of documents to develop its criminal investigation. Attorneys for Trump and the government are supposed to file their suggestions for a special master by Friday.

Prosecutors said they are only seeking to halt the judge’s order as it pertains to classified records that were seized by agents last month. “The classified records -- a discrete set of just over 100 documents -- have already been segregated from the other seized records and are being maintained separately,” the department said in the filing.

A Trump spokesman didn’t immediately return a message left for comment. Alina Habba, one of Trump’s lawyers, also didn’t respond to a message seeking comment.

The Justice Department’s filing essentially takes a legal sledgehammer to Cannon’s ruling, saying it makes no sense and is at times contradictory.

For example, Cannon prohibited the Justice Department and FBI from using the documents for its ongoing criminal investigation but said intelligence agencies could use the documents to assess national security risks related to the compromise of classified information.

The department uses Cannon’s logic against her, saying she plainly realizes the value of using the documents, and said it’s impossible to separate the two tasks as the Federal Bureau of Investigation is part of the nation’s intelligence community.

“Any FBI agent or analyst who investigated whether the classified records were improperly accessed, for instance, would by definition be gathering information highly relevant to -- and thus in furtherance of -- ‘criminal investigative purposes,’” the department said.

Empty Folders

The FBI also found empty folders for classified material at Trump’s resort, raising the possibility that they once contained classified information that has gone missing.

“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,“ DoJ said.

The injunction against using classified records in the criminal probe also 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,” the department wrote.

The department also is seeking an emergency stay against providing any so-called special master with access to the classified material, saying doing so also creates irreparable harms.

Cannon’s order has meant that US intelligence agencies have had to halt an assessment of potential national security risks of having the documents at Trump’s resort, which isn’t a secure facility for classified material, the department said.

“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 wrote.

Cannon had said the government could continue to access the documents for the limited purposes of conducting a national-security review that’s already underway.

Cannon ruled that the special master could review the seized materials for both attorney-client privilege and executive privilege. The Justice Department argued that a former president cannot assert executive privilege against the administration of the sitting president, but the judge said the Supreme Court had not settled that issue.

In its filing Thursday, the Justice Department said it expected to submit its list of special master candidates on Friday along with proposals on the procedures for the special master’s review, including “the special master’s duties.” The government also said it will confirm that it will make available to Trump copies of all unclassified documents removed during the search and that it will return to him “personal items that were not commingled with classified records and thus are of likely diminished evidentiary value.”

Most Read from Bloomberg Businessweek

©2022 Bloomberg L.P.