www.politico.com /news/2022/09/08/doj-appeals-special-master-ruling-in-trump-mar-a-lago-probe-00055686

DOJ appeals special master ruling in Trump Mar-a-Lago probe

9-12 minutes

A page from the order granting a request by former President Donald Trump's legal team to appoint a special master to review documents seized by the FBI during a search of his Mar-a-Lago estate is photographed Monday, Sept. 5, 2022. | Jon Elswick/AP Photo

The Justice Department is seeking to overturn a federal judge’s ruling that blocked investigators from reviewing a range of highly-sensitive documents seized from former President Donald Trump’s Mar-a-Lago estate.

Prosecutors said in a new court filing that U.S. District Court Judge Aileen Cannon’s decision to temporarily halt the FBI’s ability to probe the ex-president’s handling and storage of classified materials would cause “irreparable harm” to efforts by the intelligence community to protect national security interests.

“[I]n order to assess the full scope of potential harms to national security resulting from the improper retention of the classified records, the government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised,” Justice Department counterintelligence chief Jay Bratt argued in the filing. “But that inquiry is a core aspect of the FBI’s criminal investigation.”

Cannon’s attempt to enjoin the FBI investigation while permitting a parallel national security review of the seized documents was simply unworkable, Justice Department officials argued.

“[S]uch bifurcation would make little sense even if it were feasible, given that the same senior DOJ and FBI officials are ultimately responsible for supervising the criminal investigation and for ensuring that DOJ and FBI are coordinating appropriately with the [Intelligence Community] on its classification review and assessment,” Bratt added.

In fact, prosecutors indicated the intelligence community had halted its review of the seized materials altogether — including an assessment of whether they, or any sources and methods, had been compromised — due to “uncertainty” around Cannon’s ruling.

Underscoring its case for allowing the intelligence and law enforcement components of the probe to work together, DOJ contended that it was urgent the FBI be permitted to help investigate dozens of empty folders found at Mar-a-Lago with classification markings to determine what they once held and whether their contents “may have been lost or compromised.”

While Trump has contended that he should be able to assert executive privilege over many or all of the records seized from his Florida home, the Justice Department says those claims clearly fall short when classified information is at issue.

“Even if a former President might in some circumstances be able to assert executive privilege against the Executive Branch’s review and use of its own documents, any such assertion would fail as to the classified records at issue here,” Bratt wrote.

In its filing, the Justice Department asks Cannon to exclude all documents with classification markings from any special master review while the government appeals her ruling to the Atlanta-based 11th Circuit Court of Appeals.

The filing is the latest volley in a weeks-long legal drama following the FBI’s seizure of records from Mar-a-Lago. And it underscores the careful path the Justice Department is attempting to tread as it pursues a criminal investigation that has not only entangled the former president but, thanks to Cannon’s order, raised profound questions about the separation of powers.

The move by the Justice Department appeared aimed at streamlining its legal case in case it has to seek emergency relief from the 11th Circuit, which leans heavily in favor of Republican appointees. Six of the court’s 11 active judges were appointed by Trump.

Focusing the dispute on national security secrets could sideline thornier arguments over the outer bounds of executive privilege for former presidents, as conservative judges who favor broad executive power in the military sphere could be reluctant to intrude on the current president’s authority in that arena.

Prosecutors indicated that if Cannon doesn’t act by Sept. 15 to grant the requested stay to allow use of the documents marked as classified, the government plans to ask the appeals court to do so.

The Justice Department’s filing appended a sworn declaration from Alan E. Kohler, Jr., assistant director of the FBI’s Counterintelligence Division, emphasizing the FBI’s key role in the intelligence community and its necessary involvement in any review of the seized materials, for both criminal and national security purposes.

Prosecutors also indicated that the department has not interpreted Cannon’s ruling to bar senior Justice Department, FBI and intelligence community leaders “from briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered.”

Prosecutors are not seeking immediate relief from the portion of Cannon’s order that called for an outside expert — or “special master” — to review the unclassified records for materials that could be subject to privilege claims. The government indicated that its stay request also won’t stand in the way of aspects of the judge’s decision that could give the yet-to-be-named outside expert a role in separating out presidential records, personal records or other materials seized by the FBI during the Aug. 8 search, aside from those bearing classification markings like “Top Secret.”

Prosecutors also offered some concessions to Trump in the filing, saying that the government plans to give his lawyers copies of “all unclassified documents recovered during the search—both personal records and government records.” The Justice Department also pledged to return a subset of “Plaintiff’s personal items that were not commingled with classified records and thus are of likely diminished evidentiary value.”

If granted, the prosecution’s request to exclude classified information from an outside review could broaden the number of potential special master candidates, since such an outsider would no longer need to have a high-level security clearance. Cannon granted Trump’s request for a special master over the objection of prosecutors who warned the move would delay and complicate their investigation into potential crimes such as illegal retention of classified information, theft of government records and obstruction of justice.

The order from Cannon, a Trump appointee, contained an unusual provision that the Justice Department and FBI halt their use of the records while the two sides tried to reach agreement on who would serve as a special master and how that person would handle a review of the seized files for information potentially subject to attorney-client privilege, executive privilege or other protections.

Prosecutors and attorneys for Trump face a Friday deadline to give Cannon a detailed plan on how the special master review would work and who might be selected for the job.
The Justice Department’s filing appended a sworn declaration from Alan E. Kohler, Jr., assistant director of the FBI’s Counterintelligence Division, emphasizing the FBI’s key role in the intelligence community and its necessary involvement in any review of the seized materials, for both criminal and national security purposes.

Prosecutors also indicated that the department has not interpreted Cannon’s ruling to bar senior Justice Department, FBI and intelligence community leaders “from briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered.”

Prosecutors are not seeking immediate relief from the portion of Cannon’s order that called for an outside expert — or “special master” — to review the unclassified records for materials that could be subject to privilege claims. The government indicated that its stay request also won’t stand in the way of aspects of the judge’s decision that could give the yet-to-be-named outside expert a role in separating out presidential records, personal records or other materials seized by the FBI during the Aug. 8 search, aside from those bearing classification markings like “Top Secret.”

Prosecutors also offered some concessions to Trump in the filing, saying that the government plans to give his lawyers copies of “all unclassified documents recovered during the search—both personal records and government records.” The Justice Department also pledged to return a subset of “Plaintiff’s personal items that were not commingled with classified records and thus are of likely diminished evidentiary value.”

If granted, the prosecution’s request to exclude classified information from an outside review could broaden the number of potential special master candidates, since such an outsider would no longer need to have a high-level security clearance. Cannon granted Trump’s request for a special master over the objection of prosecutors who warned the move would delay and complicate their investigation into potential crimes such as illegal retention of classified information, theft of government records and obstruction of justice.

The order from Cannon, a Trump appointee, contained an unusual provision that the Justice Department and FBI halt their use of the records while the two sides tried to reach agreement on who would serve as a special master and how that person would handle a review of the seized files for information potentially subject to attorney-client privilege, executive privilege or other protections.

Prosecutors and attorneys for Trump face a Friday deadline to give Cannon a detailed plan on how the special master review would work and who might be selected for the job.