The Department of Justice (DOJ) 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 for an immediate but partial stay while the appeals process plays out.
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 the court were to entertain such a claim, the briefing states, executive privilege claims on government documents are often overruled when there is a compelling stake requiring them to be 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 motion, the DOJ has requested that Cannon issue a partial stay of her ruling so that investigators can resume examination of the classified documents that Trump had hidden at his Palm Beach, Florida, residence. The Justice Department is not requesting the stay be placed on non-classified items, but says that it must be able to resume its work for national security purposes.
If a stay is not granted by next week, the DOJ said it will ask for a stay from the 11th U.S. 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 Kerr, law 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 documents that Trump removed from the White House 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.
More than 300 classified documents have been retrieved from Mar-a-Lago since the start of 2022, according to reports. 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 Congress that he had them in his possession.
After that initial retrieval, the National Archives discovered that some of the documents were highly classified in nature and alerted the DOJ. The department subpoenaed Trump to return all remaining classified documents in June and required him to affirm that all the documents had been removed from the estate.
A search warrant was executed at Mar-a-Lago in early August after evidence surfaced that more classified government material was being kept on the property. FBI agents removed more than 11,000 government documents during that search alone, including more than 100 documents that were classified.
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