WASHINGTON — The Justice Department asked a federal appeals court Friday to lift a judge’s order that temporarily barred it from reviewing a batch of classified documents seized during an FBI search of former President Donald Trump‘s Florida home last month.
The department told the 11th Circuit U.S. Court of Appeals in Atlanta that the judge’s hold was impeding the “government’s efforts to protect the nation’s security” and interfering with its investigation into the presence of top-secret information at Mar-a-Lago. It said the hold needed to be lifted immediately so work could resume.
“The government and the public would suffer irreparable harm absent a stay,” department lawyers wrote in their brief to the appeals court.
The judge’s appointment of a “special master” to review the documents, and the resulting legal tussle, appear certain to further slow the department’s criminal investigation. It remains unclear whether Trump, who has been laying the groundwork for another potential presidential run, or anyone else might be charged.
U.S. District Judge Aileen Cannon earlier this month directed the department to halt its use of the records until further court order, or until the completion of a report of an independent arbiter who is to do his own inspection of the documents and weed out any covered by claims of legal privilege.
On Thursday night, she assigned Raymond Dearie, the former chief judge of the federal court based in Brooklyn, to serve as the arbiter — also known as a special master. She also declined to lift an order that prevented the department from using for its investigation about 100 seized documents marked as classified, citing ongoing disputes about the nature of the documents that she said merited a neutral review.
“The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion,” she wrote.
The Justice Department last week asked Cannon to put her own order on hold by Thursday, and said that if she did not, it would ask the appeals court to step in.
The FBI says it took about 11,000 documents, including roughly 100 with classification markings found in a storage room and an office, while serving a court-authorized search warrant at the home. Weeks after the search, Trump lawyers asked a judge to appoint a special master to do an independent review of the records.
In her Sept. 5 order, Cannon agreed to name a special master to sift through the records and filter out any that may be potentially covered by claims of executive privilege or attorney-client privilege.
In appointing Dearie on Thursday, she granted him access to the entire tranche of documents, including classified records. She directed him to complete his review by Nov. 30 and to prioritize the review of classified documents, and directed the Justice Department to permit the Trump legal team to inspect classified records with “controlled access conditions.”
The Justice Department disagreed with the judge that the special master should be empowered to inspect the classified records. It said the classified records that were seized do not contain communication between Trump and his lawyers that could be covered by attorney-client privilege, and said the former president could not credibly invoke executive privilege to shield government documents that do not belong to him from the investigation.
Though the department had argued that its work was being unduly impeded by the judge’s order, Cannon disagreed, noting in her order Thursday that officials could proceed with other aspects of their investigation, such as interviewing witnesses.
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