Trump asks judge to keep blocking FBI from working with seized classified files
By Alan Feuer and Charlie Savage
Lawyers for former President Donald Trump asked a federal judge earlier this week to deny the Justice Department’s request to immediately restart a key part of its criminal investigation into his hoarding of sensitive government documents at his residence in Florida.
Renewing their request for an expansive independent review of records seized from Trump, the former president’s legal team argued that documents marked as classified should remain off limits to the FBI and prosecutors. They asked the judge, Aileen M. Cannon, to maintain her order barring agents from using any of the materials taken from his estate, until an outside arbiter, known as a special master has vetted all of them.
The 21-page filing was an aggressive rebuke of the Justice Department’s broader inquiry into whether Trump or his aides illegally kept national security secrets at his property, Mar-a-Lago, or obstructed the government’s repeated attempts to retrieve the materials. It played down the criminal inquiry as a “storage dispute” and insinuated that officials might have leaked information about the contents of the files.
“This investigation of the 45th president of the United States is both unprecedented and misguided,” the filing said. “In what at its core is a document storage dispute that has spiraled out of control, the government wrongfully seeks to criminalize the possession by the 45th president of his own presidential and personal records.”
The filing was the latest salvo in what threatens to become a protracted court fight over a special master, even as the Justice Department signaled late Monday that it could accept at least one candidate Trump’s lawyers had suggested for the post. Part of the dispute centers on whether the special master’s review should extend to blocking investigators from using any records potentially protected by executive privilege.
The filing, which came as Trump returned to the Washington area, underscored how he has succeeded for now in using what amounts to a procedural sideshow to stall the criminal investigation, even after his representatives falsely said in June that his office had returned any documents marked as classified in his possession.
Prosecutors had asked Cannon last week to let investigators resume working with about 100 documents marked as classified that formed a small portion of the nearly 13,000 items the FBI seized during a court-authorized search of Mar-a-Lago on Aug. 8.
They said the prohibition on using those materials was hindering the intelligence community’s review of any risk caused by the insecure storage of national security secrets and a classification review of the materials, arguing those efforts were inextricably intertwined with the criminal investigation.
But on Monday, Trump’s lawyers dismissed the government’s claims, saying that those assertions appeared to be “exaggerated” and that only a “brief pause” would be required for the special master’s review to be completed. (Trump’s lawyers indicated on Friday that they expected the review to take three months.)
“This convenient, and belated, claim by the government relative to enjoining the criminal team’s access to these documents only arises because the FBI concedes the intelligence community review is actually just another facet of its criminal investigation,” they argued.
But Trump’s filing left open an ambiguous possibility: that the FBI could undertake further actions related to the documents — including using criminal investigative tools like subpoenas — if their purpose was to assist the intelligence community’s risk assessment.
That concession did not address the possibility that such actions could also further the criminal inquiry.
The dispute over the special master has already delayed a briefing on the seized materials to top leaders in Congress and leaders of congressional intelligence committees, a person familiar with the matter said.
The clash traces back to an order issued early last week by Cannon, a Trump appointee, in which she said she would appoint a special master with broad authority to review all the seized materials. In her order, Cannon said they could be scrutinized not only for any documents potentially covered by attorney-client privilege, a relatively common measure, but also for executive privilege, which would be unprecedented in a federal criminal inquiry.
As part of her order, Cannon told the Justice Department that it would have to wait until the special master’s work was done to use any of the records in its investigation. But the judge conceded that the intelligence community could use the materials in a separate assessment of how the former president’s hoarding of the records might have affected national security.
On Thursday, the Justice Department shot back, telling Cannon in yet another filing that the intelligence assessment and the criminal inquiry were “inextricably linked.” Prosecutors asked her to lift her ban on using the seized materials and requested she restrict the scope of the special master’s review to unclassified documents, excluding about 100 seized files bearing classification labels.
Moreover, prosecutors informed her that if she did not grant by Thursday their request to stay the portion of her ruling that is keeping investigators from working with the documents marked as classified, they would ask the 11th U.S. Circuit Court of Appeals, in Atlanta, to intervene and block it.
The Justice Department and Trump’s lawyers have also sparred over the question of who should be appointed special master, with each side submitting two candidates for the post. Cannon will ultimately decide who gets the job.
The Justice Department has suggested two retired federal judges: Barbara S. Jones, who formerly sat on the U.S. District Court for the Southern District of New York, and Thomas B. Griffith, who formerly sat on the Court of Appeals for the District of Columbia Circuit.
The Trump legal team has countered with a semi-retired federal judge, Raymond J. Dearie, who formerly sat on the U.S. District Court for the Eastern District of New York, and Paul Huck Jr., a former deputy attorney general in Florida.
The Justice Department said Monday that it would be fine with Dearie or either of its suggestions, pointing to their “substantial judicial experience,” including in federal cases that involved national security and issues of privilege.
But it flagged that while Trump’s lawyers had described Dearie as retired, he remains a judge on “senior active” status, which might raise a legal problem if working as a special master counted as impermissible outside employment. The department opposed appointing Huck, saying he “does not appear to have similar experience.”
In a separate filing Monday, Trump’s legal team suggested that if the judge wanted to know whether it had any objections to the candidates, it would prefer to privately submit them since the filings were likely to receive wide attention.
In its initial filing on Monday, Trump’s legal team sidestepped the question of whether he had declassified all the documents he took to Mar-a-Lago, as he has insisted outside court. His lawyers said that as president, Trump had the authority to declassify anything he wanted and referred to the files as “purported” classified records.
But they stopped short of affirmatively stating that he had declassified any files that the FBI seized. No credible evidence has emerged to support that assertion, and lawyers face professional consequences for making false claims in court.