Lawyers for former President Donald Trump on Monday urged a federal judge to reject an effort by the Department of Justice to resume its review of documents seized from Trump’s home while the agency appeals the judge’s decision to appoint a special master in the case.
Judge Aileen Cannon’s order authorizing the appointment of the special master — an independent third party to examine the seized records for personal items and possibly privileged material — “is a sensible preliminary step towards restoring order from chaos,” Trump’s lawyers wrote.
“The Government should therefore not be permitted to skip the process and proceed straight to a preordained conclusion,” they argued in U.S. District Court in southern Florida.
The FBI seized thousands of government records when it raided Mar-a-Lago, Trump’s resort home in Palm Beach, Florida, on Aug. 8. Many of those documents bore classification markings, including dozens of folders that were empty when they were collected by the FBI.
The Justice Department has argued that a special master is unnecessary, because a team of agency officials had already completed a review of the documents to exclude material from prosecutors protected by attorney-client privilege. The DOJ also argued the appointment of a special master could harm the government’s national security interests in the criminal investigation.
Cannon, who was appointed by Trump, last week ordered a special master to examine the records before turning them over to federal prosecutors. Her order also temporarily blocked the DOJ from further reviewing the documents bearing classification markings.
The DOJ on Thursday appealed Cannon’s ruling to the U.S. Court of Appeals for the 11th Circuit, which holds appellate jurisdiction over cases from district courts in Florida.
The same day, the government also asked Cannon to stay her order enjoining review of the classified-marked documents while the appeal is proceeding.
On Friday, Trump and the DOJ each submitted two candidates to serve as special master, while expressing disagreements about the scope of the review of the seized records. The DOJ wants the special master to send any alleged executive privilege documents to the National Archives and Records Administration, while Trump’s attorneys say there is no need for the special master to do so.
In a separate filing Monday, Trump’s attorneys said they opposed the DOJ’s proposed special master picks. They asked the judge for permission to share the reasons for their opposition in private, saying “it is more respectful to the candidates from either party to withhold the bases for opposition from a public, and likely to be widely circulated, pleading.”
Trump has publicly claimed he declassified the records that were found at Mar-a-Lago. His attorneys do not directly echo that claim in Monday’s filing, but argue the Justice Department is wrong to assume that “if a document has a classification marking, it remains classified irrespective of any actions taken during President Trump’s term in office.”
The government “has not proven these records remain classified,” the former president’s lawyers wrote.
Some former DOJ officials and legal experts have criticized Cannon’s order authorizing the special master. Trump’s former Attorney General William Barr said last week that he considered the ruling “deeply flawed in a number of ways” and that he hoped the DOJ would appeal it.