The U.S. Justice Department asked a federal judge Thursday to suspend parts of her recent order authorizing the appointment of a special master for materials seized from former President Donald Trump's Florida residence and prohibiting prosecutors from viewing classified documents while an independent review is conducted.
Saying an ongoing FBI investigation into Trump’s handling of classified records is being impeded by the ruling, lawyers for the Justice Department put U.S. District Judge Aileen Cannon on notice that they plan to appeal her ruling if she does not grant a partial stay by next Thursday.
“Without a stay, the government and the public will suffer irreparable harm,” they wrote.
With a partial stay, the special master, or an outside party, would be able to view nonclassified records seized by the FBI, including Trump’s personal items and information protected by attorney-client privilege, the department officials wrote.
The filing was signed by U.S. Attorney Juan Antonio Gonzalez, top Justice counterintelligence official Jay Bratt, and head of the department’s National Security Division, Matthew Olsen.
During the August 8 search of Trump’s Mar-a-Lago club in Florida, FBI agents removed nearly 13,000 documents and items. Among the documents, more than 100 were classified, some labeled “top secret.”
The Justice Department will provide Trump’s team with copies of all unclassified documents seized during the search and return to Trump items that “were not commingled with classified records and thus are of likely diminished evidentiary value,” the officials wrote.
Blocking prosecutors from gaining access to the 100-plus classified records would also impede a classification review and national security assessment of the documents, the Justice officials wrote in their filing.
Before Cannon’s order “the same personnel from the FBI involved in the criminal investigation were coordinating appropriately with the [Intelligence Community] in its review and assessment.”
But uncertainty over the scope of Cannon's order has forced the intelligence community to "pause" its assessment, the filing said.
In addition to a law enforcement agency, the FBI is part of the U.S. intelligence community.
The FBI is investigating several potential criminal violations in connection with Trump’s retention of the documents more than a year after he left the White House.
Under the Presidential Records Act, Trump was required to turn over all documents related his presidency to the National Archives.
Cannon’s order came in respond to a request by Trump for a special master to review all materials from Mar-a-Lago to determine whether any were protected by attorney-client privilege or executive privilege and should be returned to Trump.
A special master is an independent third party appointed by a court to review documents in sensitive legal cases.
In their court filing, the Justice officials wrote that Cannon “erred” when she enjoined the government's use of classified records for “investigative purposes” and authorized a special master to view them.
Trump cannot lay claim on the classified records, they wrote, adding that allowing Cannon’s order to remain in force "will cause the most immediate and serious harms to the government and the public."
No “potential assertion of executive privilege could justify restricting the Executive Branch’s review and use of the classified records at issue here,” prosecutors wrote.
Cannon ordered Trump to respond to the department’s motion for a partial stay by 10 a.m. Monday.
She also asked the two sides - Justice and Trump’s lawyers - to take into account the department’s latest motion when they propose candidates for special master.
