DOJ Appeals Ruling Granting Trump a Special Master in Classified Docs Inquiry

The Department of Justice is appealing a ruling by a federal judge that ordered a special master to examine government records that were retrieved from former President Donald Trump’s Mar-a-Lago estate last month.

The department is also asking to be granted a temporary, but not complete, stay while the appeals process unfolds.

Many legal scholars condemned Judge Aileen Cannon’s ruling earlier this week to halt the investigators’ examination of those documents, saying that she was legitimizing arguments made by Trump’s lawyers that he had executive privilege protections even though he is no longer president. In the appeal the DOJ says that Trump “does not and could not assert that he owns or has any possessory interest in classified records.”

Even if a court were to entertain such an argument, the briefing states executive privilege claims on documents government are often overruled when there are compelling stakes requiring them to examined.

“Supreme Court precedent makes clear that any possible assertion of privilege that [Trump] might attempt to make over the classified records would be overcome by the government’s ‘demonstrated, specific need’ for that evidence,” the DOJ said. “Among other things, the classified records are the very subject of the government’s ongoing investigation.”

While the appeal is in progress, the DOJ has requested Cannon to be removed. issue a partial stay of her rulingSo that investigators can resume examinations of classified documents that Trump kept at his Palm Beach, Florida residence. The Justice Department does not request that the stay be placed on classified items, but it states that it must be able resume its work for national security reasons.

The DOJ stated that if a stay is not granted next week, it will request a stay from U.S. 11. Circuit Court of Appeals.

Cannon’s original order from earlier this week stated that, while the DOJ couldn’t continue examining those documents, a separate assessment from the Office of the Director of National Intelligence could continue. In the DOJ’s briefing on Thursday, it asserted that their inquiry and that assessment were intertwined.

Cannon’s order “[frustrates] the government’s ability to conduct an effective national security risk ​assessment and classification review and could preclude the government from taking necessary remedial steps in light of that review — risking irreparable harm to our national security and intelligence interests,” the DOJ brief said.

Legal experts said the department’s strategy could be successful, even though the appeal will be heading to the conservative-leaning 11th U.S. Circuit Court of Appeals.

It’s “quite likely that even a conservative panel would grant” a stay, based on the DOJ’s motion, Harry Litman, a journalist and former U.S. attorney, said on Twitter.

“The limited ‘ask’ is a decent strategy, I would think,” said Orin KerrLaw professor at the University of California Berkeley. “Cannon didn’t read like a compromising judge in her prior order, but she might grant this. And if she doesn’t, it becomes all the more headscratching and sets up a better appeal for DOJ in the 11th Circuit.”

The DOJ presented additional arguments that lifting Cannon’s order was warranted, including noting the possibility that Trump may have more documents in his possession. Prosecutors warned that investigators may not have retrieved the totality of government documentsTrump had his White House documents removed upon his departure. Cannon’s ruling would make it difficult to retrieve those documents if they’re out there, the DOJ argued.

“The injunction against using classified records in the criminal investigation could impede efforts to identify the existence of any additional classified records that are not being properly stored — which presents the potential for ongoing risk to national security,” the DOJ said.

Mar-a-Lago has retrieved more than 300 classified documentsAccording to reports, the retrieval process has been ongoing since the beginning of 2022. The retrieval process has been an arduous one — despite Trump’s claims that he has been cooperative, the former president only allowed some documents to be retrieved in January After the National Archives threatened to alert CongressThey were his.

After that initial retrieval the National Archives discovered that some documents were highly classified and alerted DOJ. In June, the department subpoenaed Trump and asked him to return all classified documents.

Mar-a-Lago was searched in August after evidence showed that more classified material had been kept on the property. FBI agents removed more than 11,000 government documentsDuring that search, more than 100 documents were classified.