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DOJ appeals order to appoint special master for seized Trump records

A federal judge appointed by the former president granted his motion to halt the government’s review of documents taken from Mar-a-Lago.

WASHINGTON (CN) — The Department of Justice on Thursday appealed a federal judge’s decision to appoint a special master to review records seized from former President Donald Trump’s south Florida resort home.

The appeal comes three days after U.S. District Judge Aileen Cannon, a Trump appointee, issued a decision requiring the DOJ to stop using the seized materials for its criminal investigation until completion of a review by a special master.

Cannon heard arguments last week on Trump’s motion for judicial oversight and issued a 24-page order on Monday directing the government and Trump’s legal team to file a proposed list of special masters with high-level security clearance by Friday at midnight.

The government also filed a 21-page motion for a partial stay of the judge’s order, asking the court to withhold from the special master the “discrete set of just over 100 documents” identified as classified by the government, and to allow it to continue using them in its criminal investigation while the appeal is litigated. 

Judge Cannon’s order allows the Office of the Director of National Intelligence to keep using all of the more than 11,000 seized documents for its classification review and national security risk assessment — while blocking the Department of Justice and FBI from using the roughly 100 classified documents as part of its criminal investigation. 

Cannon wrote that her order was not intended to “impede” the intelligence community’s review and assessment, but the government argues in its motion that those two processes alone “are not sufficient to address and fully mitigate any national security risks presented.” 

The intelligence community’s review and assessment, the government said, are also “inextricably intertwined” with the Department of Justice and FBI’s criminal investigation — so they cannot be readily separated.  

“And uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI has caused the Intelligence Community, in consultation with DOJ, to pause temporarily this critically important work,” the government said. 

According to a 6-page declaration from Alan Kohler, assistant director of the FBI’s Counterintelligence Division, classification reviews are used to inform the intelligence community’s national security risk assessment, and the FBI uses those classification reviews to inform criminal investigations into potential mishandling of national defense information. 

“The application of the injunction to classified records would thus frustrate 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 government said. 

Since the FBI’s criminal investigation and national security-related missions are integrated, the government said it would be “exceedingly difficult” to separate FBI personnel assigned to the criminal investigation from those working in conjunction with other entities in the intelligence community. 

“And such bifurcation would make little sense even if it were feasible, given that the same senior DOJ and FBI officials are ultimately responsible for supervising the criminal investigation and for ensuring that DOJ and FBI are coordinating appropriately with the [intelligence community] on its classification review and assessment,” the government said. 

As the government sees it, Judge Cannon’s decision to allow the intelligence community to keep using the materials for its review and assessment means she “appears to have recognized” the irreparable harm the government and public would face if it is unable to determine the circumstances surrounding potentially compromised materials and related risks to national security. 

“But absent a partial stay, the Court’s injunction will compromise those critical interests,” the government wrote. 

The classification markings establish on the face of the documents that they are indeed government records, not Trump's personal records, according to the government. And if Judge Cannon grants the partial stay, the government said the only “injury” Trump faces relates to the probe itself.

“But that injury is not legally cognizable,” the government said. “That is why courts have exercised great caution before interfering through civil actions with criminal investigations or pending cases.”

Attorneys for Trump did not immediately respond to an email request for comment on the appeal. 

Trump is under investigation for removing government records from the White House at the end of his single term as president on Jan. 20, 2021, and storing them at his 12-acre estate in West Palm Beach. 

The FBI raided his Mar-a-Lago home on Aug. 8 and seized 20 boxes of documents, including 11 sets of classified documents, according to records unsealed by the court last month. Among the more than 11,000 seized files were the grant of clemency to the former president's close ally Roger Stone, binders of photos and what is described as “info re: President of France.” 

The former president brought the motion for judicial oversight of the government’s review of the seized materials last month. 

Cannon, 41, served as an assistant U.S. attorney in Florida before then-President Trump nominated her to the federal bench in 2020. The Senate later confirmed her appointment in a 56-21 vote.

It is not immediately clear what impact, if any, the government’s appeal to the Atlanta-based 11th Circuit may have on the order.

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