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Department of Justice Appeals form part of special master review in Trump case

WASHINGTON — The Justice Department asked an appeals court Friday to allow the FBI to regain access to some 100 sensitive documents taken from former President Donald J. Trump’s Florida residence, but made no attempt to block the appointment of an outside arbitrator. to review other materials.

in a 29 page presentation, the department asked the appeals court not to submit the roughly 100 files marked classified through the arbitrator’s investigative process, known as a special master, agreeing to review another 11,000 documents seized from Trump’s home and resort, Sea- a lake. The review has frozen the government’s access to the material while it investigates Trump’s handling of the documents.

“Although the government believes that the district court was fundamentally wrong in appointing a special teacher and granting injunctions, the government seeks to suspend only those parts of the order that cause the most serious and immediate harm to the government and the public,” they wrote. attorneys with the department’s homeland security division.

The filing was the latest twist in what began as a legal sideshow to the investigation into Trump’s hoarding of government documents, including some marked as highly classified, and his refusal to return them, even after being subpoenaed.

In a ruling last week, Judge Aileen M. Cannon, a federal judge appointed by Trump in 2020, granted his request to impose a special master to examine all material seized from Mar-a-Lago for both attorney-attorney privilege. client as per executive privilege. She prohibited law enforcement agencies from using any of the documents for criminal investigation purposes until that job was done.

The Justice Department initially asked Judge Cannon to suspend the part of her order that blocked full investigative use of the roughly 100 files with classification marks, but on Thursday she declined to do so. That prompted law enforcement officials to ask the 11th US Circuit Court of Appeals, in Atlanta, to issue a stay instead.

The department’s filing described the request as “modest but critically important.” He said “irreparable harm would be suffered by the government and the public in the absence of a stay” because efforts to fully understand the effects of fortuitous storage of class-marked documents could not proceed unless the lower court’s decision was partially reversed.

And he argued that denying the agents access to the documents “unduly interferes” with the criminal investigation into possible obstructions and violations of the Espionage Law.

In contrast, Trump would not be harmed if the government reclaimed and examined material that does not belong in his possession anyway, the department added.

On Thursday, Judge Cannon appointed Raymond J. Dearie, a semi-retired judge of the United States District Court for the Eastern District of New York who has experience in highly sensitive national security matters, to serve as special master.

Trump’s legal team had suggested Judge Dearie, and the government did not object to his appointment if his appeal was denied. On Friday, in his first official move as a special master, Judge Dearie asked Trump’s lawyers and the Justice Department to send him “proposed agenda items” on Monday ahead of an initial document review meeting Tuesday in the federal courthouse in Brooklyn.

In its motion for a partial stay of Judge Cannon’s order, the department also rejected Trump’s argument that he could assert executive privilege to prevent criminal investigators, who are part of the executive branch, from gaining access to proprietary materials. of the executive branch as part of their work.

The filing cited a 1974 Supreme Court ruling that rejected President Richard M. Nixon’s attempt to use executive privilege to prevent the Watergate prosecutor from obtaining tapes of their conversations in the Oval Office, saying the precedent meant that any Trump’s assertion of executive privilege would be overturned. as a matter of law.

And he blamed Judge Cannon for presenting the classification status of the seized documents as disputed. While Trump publicly claimed that he had declassified everything he took to Mar-a-Lago, prosecutors stressed that “despite multiple opportunities,” his team “never” argued in court that he did.

“If the records had indeed been declassified, the government would have an additional pressing need to understand what had been declassified and why (and who has seen it) in order to protect intelligence sources and methods,” the document says.

The motion asking the appeals court to intervene immediately intensifies the fight between the Justice Department and Trump. The 11th Circuit will face a series of legal and constitutional issues centered on Judge Cannon’s involvement in the investigation and Trump’s assertion that, as a former president, he still wields sweeping powers of executive privilege.

Six of the 11 active judges on the appeals court in Atlanta were appointed by Trump.

Judge Cannon’s order imposing a special master with broad authority and ordering the government was a victory for Trump and his legal team, which has at times struggled to keep up with the demands of the case; they submitted their request for a special master weeks later than many of his allies had urged.

However, by refusing to suspend parts of her order on Thursday, the judge also made several concessions to the government.

She said the FBI could continue parts of its investigation into what happened to the documents, as long as it doesn’t present them to a grand jury or question witnesses about their contents.

And he directed Judge Dearie to first look at documents with classification marks and “then consider quick adjustments to court orders as necessary,” a nod to the Justice Department’s request to quickly assess the most sensitive materials.

That raised the possibility that Judge Dearie could quickly remove those items and that the FBI would later regain unrestricted use of them in its criminal investigation. In her order, Judge Cannon said the special master should try to finish his review by November 30.

But the Justice Department told the appeals court that Judge Cannon’s concessions were “insufficient” to mitigate what it described as national security harm caused by her intervention by limiting the FBI’s ability to investigate any potential disclosure. of the files, or if any are still missing. .

In presenting its case, the department provided its most detailed explanation to date of why it contends that Judge Cannon’s blocking of immediate access to documents marked classified, if allowed to remain, will hamper the intertwined criminal investigation and assessment of national security.

By prohibiting criminal investigators from analyzing the contents of the documents or using them to conduct witness interviews, the department said, Judge Cannon was thwarting efforts to discern any potential patterns in the types of records Trump kept. Such insights could help identify any other records that may still be missing, a question raised by the FBI’s discovery of empty folders for classified material in the search.

The materials, according to the filing, “were uncertainly stored for an extended period of time, and the court order itself prevents the government from even beginning to take the necessary steps to determine whether improper disclosures might have occurred or may still occur.” .

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