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Trump’s lawyers push back on classification status of seized records

Over a month after the Justice Department announced the recovery of top-secret documents from Mar-a-Lago, attorneys for former President Trump say the classification of these records is very much in dispute.

(CN) — Clamoring for an independent review that the government says would unnecessarily delay its criminal investigation, a legal team for former President Donald Trump made the case in a federal court filing Monday that his south Florida home is "a secure, controlled access compound."

Tallahassee-based attorney Chris Kise signed the 21-page reply for Trump, which urges U.S. District Judge Aileen Cannon not to disturb her order for a special master review of what the government says is a classified, “discrete set of just over 100 documents” that the FBI seized from Mar-a-Lago in an Aug. 8 raid.

Because the court did not make findings as to the classification status of any of the documents, “there still remains a disagreement as to the classification status of the documents," Kise wrote.

“The Government’s position therefore assumes a fact not yet established,” the brief continues.

Cannon, a Trump appointee, issued the order for a special master last Monday, giving the government and the former president's legal team until the end of the week to file a proposed list of people with high-level security clearance who could do the job.

The Department of Justice quickly informed the 11th Circuit of its plans to appeal that judgment while also filing a 21-page motion with the Trump-appointed Cannon for a partial stay of her order.

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 but otherwise blocks the Department of Justice and FBI from using roughly 100 documents designated as classified as part of its criminal investigation. 

The judge 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 fully mitigate any national security risks and they are “inextricably intertwined” with the DOJ and FBI’s criminal investigation. 

“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 in its motion. 

But Trump’s attorneys insisted on Monday that the government’s investigation of the 45th president is both “unprecedented and misguided” and at its core, is a “document storage dispute that has spiraled out of control.” 

As they see it, the government misinterpreted Cannon’s order as a “prohibition on conducting a national security assessment.” 

“That reading is, however, misplaced as the Court made clear such assessment may proceed,” Trump’s legal team wrote. 

And though the government cites an urgent need to conduct a risk assessment of potentially unauthorized disclosure of the purported classified records, Trump’s attorneys claim there is no indication any records were improperly disclosed. 

“Indeed, it appears such ‘classified records,’ along with the other seized materials, were principally located in storage boxes in a locked room at Mar-a-Lago, a secure, controlled access compound utilized regularly to conduct the official business of the United States during the Trump Presidency, which to this day is monitored by the United States Secret Service,” the filing states. 

The brief cites the Presidential Records Act, with Trump’s attorneys pointing out that it lacks a provision regarding authorization of “any criminal enforcement,” but that it requires disputes regarding the disposition of any presidential record to be resolved between said president and the National Archives and Records Administration.

“What is clear regarding all of the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with NARA, but not with the Department of Justice,” the filing states. “However, it is not even possible for this Court, or anyone else for that matter, to make any determination as to which documents and other items belong where and with whom without first conducting a thoughtful, organized review.” 

Trump's attorneys asked the government on Monday to respond to their opposition filing by Sept. 22. 

Both parties filed their proposed candidates for special master over the weekend.

The former president’s team proposed Raymond Dearie, a retired New York federal judge and former U.S. attorney, and Paul Huck Jr., an attorney currently practicing in Florida.  

The government, meanwhile, suggested two former federal judges: Thomas Griffith, who served on the D.C. Circuit from 2005 to 2020, and Barbara Jones, who was a special master in cases involving former Trump attorneys Michael Cohen and Rudy Giuliani

Trump's current lawyers also want the special master to be given three months to review the documents and to split the associated costs with the government. But the government wants the special master to finish the review by Oct. 17 and for Trump to foot the bill since he brought the lawsuit.

Trump's legal team said in a supplemental filing on Monday that they oppose the government's two special master candidates. And if Judge Cannon orders them to further explain why, his attorneys asked that the reasons not be made public because "it is more respectful to the candidates from either party," noting that the pleading "is likely to be widely circulated."

"Such information could then be provided in camera or pursuant to whatever procedure the Court deems most efficient and appropriate," they wrote.

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 the Mar-a-Lago compound 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 Trump nominated her to the federal bench in 2020. The Senate confirmed her appointment in a 56-21 vote. 

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