The Justice Department wrote in a brief filing that it would be appealing the decision to the 11th Circuit Court of Appeals.
In a separate, simultaneous court filing, prosecutors asked Cannon to stay her Sept. 5 decision on two key points: her order to temporarily halt a significant portion of the FBI investigation into the potential mishandling of classified information, and to allow a special master to review the classified material that is among the documents seized as part of a court-authorized search at Trump’s Mar-a-Lago club on Aug. 8.
Ultimately, the Justice Department said that a special master could be appointed, but argued that the judge should prohibit the special master from reviewing classified documents. The special master would be still able to sort through personal documents and other items the FBI also seized, setting aside materials as necessary, the filing says.
Prosecutors wrote that allowing a special master to review the classified material would “cause the most immediate and serious harms to the government and the public,” noting that those documents have already been moved to a secure facility, separate from the rest of the seized Trump papers.
And they argued that by prohibiting investigators from using the classified materials found in the August until a special master has cleared them, Cannon could harm national security by hampering the Justice Department’s ability to recover any other classified papers that may still be outstanding.
Barring the FBI from using the classified material in the investigation “could impede efforts to identify the existence of any additional classified records that are not being properly stored—which itself presents the potential for ongoing risk to national security,” prosecutors wrote — the first time they have suggested in court filings that there could be more unsecured classified material they have yet to find.
Trump’s legal team argued in a federal courthouse in West Palm Beach last week that a special master is needed to determine whether any of the documents — more than 100 of which are classified — should be shielded from investigators because of attorney-client or executive privilege. They also said an independent outside expert would boost “trust” in the Justice Department’s criminal probe.
Justice Department lawyers told Cannon they had already sorted through the documents, using a “filter team” to separate out more than 500 pages of documents potentially covered by attorney-client privilege. That arrangement was approved by the U.S. magistrate judge who authorized the search warrant for Mar-a-Lago, Trump’s Florida home and private club, after the government tried for months to get Trump and his advisers to return all the government documents kept at the property.
The Justice Department also argued that a former president cannot assert executive privilege after he leaves office, and that it is not possible for one part of the executive branch to assert privilege to shield documents from another part.
But even if Trump could assert executive privilege, the Justice Department argued in its Thursday appeal, the government’s “demonstrated, specific need” to have access to the classified materials would override that privilege. Government prosecutors also said that Trump had no clear need to maintain possession of these classified documents.
“Among other things, the classified records are the very subject of the government’s ongoing investigation,” the filing says.
In her original ruling, Cannon said that the Office of the Director of National Intelligence could continue its analysis of the possible risk to national security posed by the removal from government custody of classified documents, some of which contain the government’s most sensitive intelligence-gathering secrets.
But Justice Department lawyers said Thursday said that it is difficult to separate the FBI investigation from the intelligence review. They said they were unsure of the “bounds” and “implications” of the court order, prompting the intelligence community to temporarily halt its review along with criminal investigators.
The Washington Post reported Tuesday that among the documents seized by the FBI was one describing a foreign government’s military defenses, including its nuclear capabilities, according to people familiar with the situation who spoke on the condition of anonymity. The people also said of the seized documents detail top-secret U.S. operations that are so closely guarded that many senior national security officials are kept in the dark about them.
While the appointment of a special master means investigators cannot use the documents they seized until the outside expert clears them, an appeal of Cannon’s decision carries its own legal risks for the Justice Department.
The appeals process could take longer than any document review by the special master. And there is no guarantee that the government would prevail, particularly if the case were to reach the Supreme Court, which has a 6-3 conservative majority that includes three Trump appointees.
This is a developing story. It will be updated.