December 3, 2023

Washington — Lawyers for former President Donald Trump on Monday urged a federal judge to continue to block Justice Department investigators from reviewing more than 100 sensitive documents seized by the FBI during its search at Mar-a-Lago, the latest in the legal back-and-forth between the former president’s legal team and federal prosecutors.

In a 21-page response to a Justice Department request asking the court to lift part of an order blocking the use of the documents for investigative purposes, Trump’s lawyers called the federal probe into his handling of sensitive records “unprecedented and misguided,” and said there is “no indication any purported ‘classified records’ were disclosed to anyone.”

“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,” Trump’s legal team told the court.

Lawyers for the former president also argued that the president had “broad authority” to declassify documents and, as a former president, has an “unfettered right” to access presidential records under the Presidential Records Act. The controversy surrounding the records, they told the court, is a “document storage dispute that has spiraled out of control.”

“[T]he government wrongfully seeks to criminalize the possession by the 45th president of his own presidential and personal records,” Trump’s attorneys claimed.

Federal prosecutors notified the federal court in South Florida last week of their intent to appeal a decision by U.S. District Judge Aileen Cannon authorizing the appointment of an independent third party to review documents taken by the FBI at Mar-a-Lago during its Aug. 8 search.

In her ruling last week granting Trump’s request for a special master, Cannon also ordered the Justice Department to temporarily stop “reviewing and using” the materials for investigative purposes pending completion of the review by the special master. She did, however, allow the government to continue reviewing and using the records seized for “purposes of intelligence classification and national security assessments.”

But Justice Department lawyers, including its top national security officials, asked Cannon to put part of her ruling on hold to allow investigators to continue reviewing a tranche of 103 records marked “confidential,” “top secret” or “secret.” 

The federal prosecutors argued in court papers the classification markings “establish on the face of the documents that they are government records,” not Trump’s personal records. They warned that the government and broader public will suffer what they view as “irreparable harm” if the materials cannot be reviewed and used in the criminal investigation into the former president’s handling of sensitive records. 

They also told the court that temporarily blocking the Justice Department from reviewing and using of the most sensitive records taken from Mar-a-Lago would “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 harm to U.S. national security and intelligence interests. 

In addition to its notice of appeal and request for Cannon to lift part of her order, the Justice Department provided the court with two candidates to serve as special master: Barbara Jones, who served on the U.S. District Court in Manhattan, and Thomas Griffith, who served on the U.S. Court of Appeals in Washington.

Trump’s lawyers also put forth two candidates to review the seized materials: Raymond Dearie, former chief judge of the U.S. District Court for the Eastern District of New York, and Paul Huck, former general counsel to Florida Gov. Charlie Crist. 

Cannon had ordered Trump and the Justice Department to submit by Friday a list of contenders to serve as special master, along with a proposed description of the mechanics of their review.  

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