UNITED STATES: The U.S. Justice Department asked a federal appeals court on Friday to allow it to recover classified materials seized by the FBI during a search of former President Donald Trump‘s Florida property.
In a filing before the U.S. Court of Appeals for the 11th Circuit, the Justice Department said the circuit court should order stay part of a lower court’s ruling that prevents prosecutors from relying on classified documents in their criminal investigation into the retention of government records at Trump’s Mar-a-Lago residence in Palm Beach after his presidency ended.
The department also asked that the third party tasked with reviewing all records taken in the federal raid on Trump, U.S. District Judge Raymond Dearie, not be allowed to review the classified materials.
The government asked the Court of Appeal to rule on the application “as soon as possible”. Trump’s lawyers did not immediately respond to a request for comment.
In an unprecedented search of the former president’s estate, the Justice Department said it was investigating the retention of government records — some designated top secret, including “top secret”, as well as obstruction of a federal investigation.
The Justice Department must now convince a conservative majority in an Atlanta-based appeals court to side with it in a lawsuit over the investigation of the records. Trump appointees make up six of the 11 active judges of the 11th Circuit.
The government’s proposal comes after U.S. District Judge Aileen Cannon rejected the same requests from the Justice Department on Thursday.
Cannon, whom Trump appointed to the bench in 2020, said she would tell Dearie, who is serving as a “special master” in the case, to prioritise the classified records in his review, which she set the 30th deadline to complete.
About 100 classified documents were among the 11,000 records collected in a court-authorized FBI search on Aug. 8 of the former president’s Mar-a-Lago resort.
At times, the government’s filing Friday directly alluded to Cannon’s previous ruling in the case. Prosecutors said the judge cited court documents from Trump’s lawyers that suggested the former president may have declassified documents marked classified, but the legal briefs did not say Trump did so.
“The court erred in granting extraordinary relief based on unsubstantiated options,” government lawyers wrote.
The Justice Department also criticised Cannon’s order that classified records be made available to Dearie and Trump’s lawyers as part of an outside review of all records taken in the search, describing the former president’s lawyers as potential witnesses to “relevant events” in the criminal investigation.
The department is also looking into possible obstruction of the investigation after finding evidence that records may have been removed or hidden from the FBI when it sent agents to Mar-a-Lago in June to try to retrieve all the classified documents through a grand jury subpoena.
Trump’s lawyers have opposed the government’s latest requests to Cannon, telling a judge in a Monday filing that they dispute the government’s claim that all the records are classified and that a special commander is needed to help keep prosecutors in check.
Trump’s lawyers launched a lawsuit over the tapes investigation last month, seeking a third party to review materials taken by federal agents and determine whether any should be shielded from investigators. The former president’s legal team argued that some of the materials could be covered by attorney-client or executive privilege, a legal doctrine that can protect some presidential records from disclosure.
Cannon granted the request in a September 5 ruling, rejecting the Justice Department’s arguments that the records belong to the government and that because Trump is no longer president, he cannot claim executive authority.
Dearie said earlier Friday that he would hold his first hearing to review the rights to the seized documents on Tuesday in federal court in Brooklyn.