By Sarah N. Lynch
WASHINGTON (Reuters) -Former President Donald Trump's attorneys on Monday opposed a U.S. Justice Department request to immediately resume examining the contents of classified documents seized by the FBI from his Florida estate last month in an ongoing criminal investigation.
His lawyers in a filing also asked U.S. District Judge Aileen Cannon to make those roughly 100 documents - among the more than 11,000 records found in the court-approved Aug. 8 search - part of a review that an independent arbiter, called a special master, will conduct to vet all the materials.
The special master, requested by Trump and approved by the judge last week, could deem documents privileged and wall them off from investigators.
Trump is under investigation by the Justice Department for retaining government records - some of which were marked as highly classified, including "top secret" - at his Mar-a-Lago estate in Palm Beach after leaving office in January 2021. The department is also examining possible obstruction of the probe.
Trump's lawyers on Monday also told Cannon they opposed two retired judges - Barbara Jones and Thomas Griffith - proposed by the government to serve as special master. Trump's team has proposed federal judge Raymond Dearie and Paul Huck, Florida's former deputy attorney general.
In its own filing, the department said it could support the appointment of Dearie, but not Huck. It said Huck did not appear to have the type of "substantial" experience presiding over federal criminal and civil cases, including cases involving national security, as did Dearie and the two other candidates.
In another development, the Justice Department has charged a Texas woman who prosecutors accused of making phone threats against Cannon, including saying the judge was "marked for assassination." The incident marks the latest example of threats reported against various federal authorities in recent months.
Cannon previously blocked the department from immediately using the seized records in the investigation, a move that will slow down the work of prosecutors and make it harder for them to determine whether additional classified materials could be missing.
"In what at its core is a document storage dispute that has spiraled out of control, the government wrongfully seeks to criminalize the possession by the 45th President of his own presidential and personal records," Trump's lawyers wrote.
"The government should therefore not be permitted to skip the process and proceed straight to a preordained conclusion," they added.
Trump's lawyers in Monday's filing disputed the department's claim that the roughly 100 documents at issue are in fact classified, and they reminded Cannon that a president generally has broad powers to declassify records. They stopped short of suggesting that Trump had declassified the documents, a claim he has made on social media but not in court filings.
"There still remains a disagreement as to the classification status of the documents," Trump's lawyers wrote. "The government's position therefore assumes a fact not yet established."
The Justice Department has asked the judge to let investigators immediately resume going through the documents marked as classified. If the judge rules that the department cannot continue relying on the classified materials for its criminal probe or insists on letting the special master review them, prosecutors have vowed to appeal to a higher court.
The documents probe is one of several federal and state investigations Trump is facing from his time in office and in private business as he considers another run for the presidency in 2024.
Following the search, Trump's attorneys sought the appointment of the special master to review the seized records for materials that could be covered by attorney-client privilege or executive privilege - a legal doctrine that can shield some presidential records from disclosure.
In ruling in favor of Trump's request last week, Cannon rejected Justice Department arguments that the records belong to the government and that because Trump is no longer president he cannot claim executive privilege. Cannon was appointed to the bench by Trump in 2020.
(Reporting by Sarah N. Lynch and Doina Chiacu; Editing by Will Dunham and Rosalba O'Brien)