The Justice Department on Friday asked an appeals court to throw out parts of a court order that required a third-party review of materials seized at Mar-a-Lago last month.
In a filing with the 11th U.S. Circuit Court of Appeals, the Justice Department said the lower court’s move to prevent criminal investigations from reviewing documents marked as classified would cause irreparable harm, writing that “criminal investigations are essential to the government’s efforts to identify and mitigate potential threats to national security.”
The department sought the intervention after U.S. District Judge Aileen Cannon on Thursday rejected a request by prosecutors to allow the criminal investigation into the classified documents to be reopened.
“The court’s order investigates and exposes the FBI and the Department of Justice (DOJ) to a Damocles of contempt if the court disagrees with how investigators divided previously integrated investigative criminal and national security activities,” the Justice Department wrote. .
The Justice Department is also asking the Court of Appeals to exclude classified documents from the so-called special master’s examination ordered by Cannon. Stating that Cannon’s order would have required the documents to be released to Trump’s lawyers, prosecutors said there was “no basis for disclosure of sensitive information” and that the order “required disclosure of highly sensitive material to a special master and prosecutor.” the lawyer – it is possible to include witnesses to important events – in the middle of an investigation, where no charges have been filed”.
The Justice Department on Friday asked the 11th Circuit to take action “as soon as possible.”
The new 11th Circuit filing speeds the case over the Mar-a-Lago search all the way to the appeals court and raises the possibility that the U.S. Supreme Court will also be asked to weigh in in the coming weeks.
The Justice Department originally sought the Mar-a-Lago search warrant after months of negotiations with Trump’s team over documents brought from his White House to the Florida resort after he left office. The FBI is investigating at least three potential crimes in its investigation: violations of the Espionage Act, unlawful tampering with government records and obstruction of justice.
In Thursday night’s order denying the Justice Department’s request to reopen its criminal investigation, Cannon questioned whether the 100 or more documents in question were actually classified, concluding the question was moot and best reviewed by an independent party.
He also rejected the Justice Department’s arguments that the holdup of his criminal investigation endangered national security. This approach is at odds with the deference courts typically show to government assertions about classification and national security.
In their appeal to the 11th Circuit, prosecutors said the lower court had ignored evidence presented to them about the risks posed by the government’s record-keeping practices.
The records, they said Friday, “make it clear that the materials were stored securely for an extended period of time, and the court order itself prevents the government from beginning to take the necessary steps to determine whether improper releases have occurred or may still occur.”
The criminal investigation ban, prosecutors said, is reducing the intelligence community’s ability to assess “the harm that would be caused by disclosing the withheld records.”
“The court order restricts the FBI — which has primary responsibility for investigating such matters in the United States — from using the seized records in its criminal investigative tools, if any records have actually been disclosed, to whom and under what circumstances,” the Justice Department told the appeals court.
Cannon further concluded that the classification designations were questionable without the Trump team presenting the kind of evidence (such as depositions) that would suggest the materials were not actually classified. Trump has said in media appearances that he declassified the documents he took to Mar-a-Lago, but his lawyers have yet to make that assertion in court filings.
Cannon has repeatedly acknowledged that his reasoning in court decisions is based in part on former President Trump’s situation, and he wrote Thursday that “principles of equity” required that he “take into account the specific context at issue, and that consideration in itself influences. The first lawsuit- the person who put it had the position.”
On appeal to the 11th Circuit, the Justice Department wrote that none of the 100 documents marked as classified could be Trump’s personal records — a type of claim it is trying to keep some of the documents out of evidence.
“None of these reasons apply to records with classification marks: the marks establish on the face of the documents that they are not. [Trump]’s personal property”, wrote the department.
The case is now before a circuit court, where six of the 11 active judges are Trump appointees. It will be left to the jury of three judges chosen at random from the court. The panel, which includes a number of appellate judges handpicked by the former president, could still be sympathetic to the Justice Department, given the deference the government typically gives when it says national security is at risk.
There is skepticism among outside legal observers about Cannon’s decision to intervene in the first place, given that a separate Florida magistrate judge approved the search warrant and the investigation itself is being held out of a D.C. grand jury.
Cannon, then President Trump’s nominee in 2020, was randomly assigned to file the lawsuit two weeks after Trump executed the FBI search warrant.
The Justice Department argued that Trump’s attempts to assert the privilege, if any at all, are weak.
“And neither [Trump] nor did the courts suggest that they might be subject to attorney-client privilege. [Trump] no assertion of executive privilege has ever been attempted or proven. Even if it did, no assertion could justify limiting the Executive Office’s review and use of those records for multiple independent reasons.
The Justice Department is also challenging Trump’s move to court to prevent investigators from being able to access classified records seized at Mar-a-Lago and access by Cannon.
Trump “does not have standing, at least as to the discrete set of records containing classification marks, because those records are government property, over which the Executive branch has exclusive control and in which plaintiff has no proprietary interest,” the DOJ wrote.
Government lawyers say courts can only get involved in exceptional circumstances, such as when a search violates constitutional rights or when a subject of a search has a special need to preserve material seized, and “cannot extend to those records.”
“The district court reasoned that other material plaintiff [Trump] may have a recognizable interest that cannot be easily distinguished from those that do not. But that rationale is not applicable to records with classification marks that are easily identifiable and separate from other materials already seized,” the department wrote.
This story has been updated with additional details.