The U.S. Justice Department on Friday asked an appeals court to end a third-party review of documents seized from Donald Trump’s Florida home, arguing that a judge should not have appointed an independent arbiter as the former president battles a criminal investigation into his handling of sensitive government records.
At issue is the appointment of a special master by the Florida-based federal judge presiding over Trump’s legal effort to restrict access to documents seized by FBI agents during a court-approved Aug. 8 search of his Mar-a-Lago estate in Palm Beach.
The Justice Department in its petition to the Atlanta-based 11th U.S. Circuit Court of Appeals said U.S. District Judge Aileen Cannon exceeded her authority when she named the special master to vet the more than 11,000 seized documents. That move essentially paused the criminal investigation by blocking the department’s access to the records, about 100 of which were marked as classified.
“The district court’s months-long injunction caused and continues to cause significant harm to the government and the public,” prosecutors said in the filing.
Cannon, a Trump appointee, named Judge Raymond Dearie to vet the records and weed out any that could be deemed privileged and withheld from investigators. Cannon tasked Dearie with determining if any were subject to attorney-client confidentiality or executive privilege – a legal doctrine that shields some White House communications from disclosure. Such documents could be made off limits to investigators.
Prosecutors have opposed an executive privilege review, arguing that the records belong to the government and not Trump, and that he cannot, as a former president, withhold executive branch records from the current president, Joe Biden.
The Justice Department is investigating whether Trump broke the law by taking government records to his Florida estate after leaving office in January 2021. Prosecutors are also looking into whether Trump or his team obstructed justice when the FBI sent agents to search his home. Officials have said more classified documents may still be missing.
About two weeks after the search, Trump sued the Justice Department and asked for the special master review in a bid to keep some of the records away from investigators while the vetting took place.
Prosecutors last month asked the 11th Circuit to exclude the 100 classified pages from Dearie’s review and restore the department’s access to those materials, saying Cannon’s injunction gravely harmed national security and the ongoing investigation.
The 11th Circuit agreed, saying Cannon erred in her decision. Now, the Justice Department is appealing the rest of Cannon’s order.
Prosecutors have said they need to be able to access all of the seized records for their criminal investigation. The 11th Circuit has said it will hear the case on an expedited basis, with final briefs due by Nov. 17.
Prosecutors said in a court filing this week they had turned over the bulk of the seized records for Trump’s attorneys to review. Cannon gave Trump’s team 21 days to review the records and determine whether he would assert any privileges over them.
Trump’s attorneys tried to get their access to the classified materials restored, but the U.S. Supreme Court on Thursday unanimously rejected Trump’s request for it to intervene.