The government has halted the intelligence community’s risk assessment of classified documents it obtained during last month’s search of former President Donald Trump’s home and compound.
In addition to its appeal, the Justice Department asked U.S. District Judge Aileen Cannon, the Trump appointee who ordered the special master, to allow her to continue her review of the documents being making for the FBI’s criminal investigation, a review the judge stayed. Prosecutors argued that the criminal investigation could not be divorced from the intelligence community’s review. “Applying the requirement to classified records would therefore frustrate the government’s ability to conduct an effective national security risk assessment and classification review and could prevent the government from taking necessary remedial action in light of of this review, at the risk of irreparably harming our national security and intelligence interests,” the DOJ wrote in its request for a stay.
The Justice Department had strongly opposed the appointment of a special master, who is a third-party lawyer tasked with reviewing evidence and leaking privileged documents. The department argued to Cannon that the independent review was not necessary, given the DOJ’s internal filtering practices that had been used in the search.
In his Monday order granting Trump’s request for the special master, Cannon halted any use of the seized materials for the DOJ’s criminal investigation. He said, however, that the intelligence community’s assessment could continue. Thursday’s presentation by the Justice Department shed light on how the two efforts are intertwined.
“The court order against the use of classified records in criminal investigation could hinder efforts to identify the existence of additional classified records that are not being stored properly, which present the potential risk to national security” , the DOJ said Thursday.
Prosecutors pointed to empty folders marked with “classified banners” that had been found at Mar-a-Lago in the search.
“The FBI would be primarily responsible for investigating what materials may have once been stored in these folders and whether they have been lost or compromised, steps that again may require the use of grand jury subpoenas , search warrants and other crimes. investigative tools and could lead to evidence that would also be highly relevant to advancing the criminal investigation,” the DOJ said.
The prosecutor described the intelligence community review that Cannon allowed to proceed as “one facet of the government’s overall effort to respond to and mitigate any risk to national security.” For example, determining the “likelihood that others have accessed improperly stored and compromised classified information” is a “core aspect of the FBI’s criminal investigation,” prosecutors added.
“IC departments and agencies would consider this information to determine whether to treat certain sources and methods as compromised,” prosecutors said.
Rollback to executive privilege playing a role with classified documents
Cannon had also ordered the independent review to look for documents potentially covered by executive privilege, in addition to attorney-client privilege concerns that are usually a special focus of the master’s.
The move, described as novel by both the Justice Department and outside legal experts, will prolong the review as the criminal investigation remains hampered by Cannon’s order.
In calling for criminal investigators to be able to access classified documents, the Justice Department on Thursday rejected the idea that the privilege could ever apply to classified materials.
“Supreme Court precedent makes clear that any potential privilege claim the plaintiff might seek to make over classified records would be outweighed by the government’s ‘specific and demonstrated need’ for such evidence,” the department said, citing the 1974 US case. v. Nixon. “Among other things, the classified records are themselves the subject of the government’s ongoing investigation.”
The department also took a look at how Cannon’s order cited a recent Supreme Court order, along with a concurring statement from Justice Brett Kavanaugh, to justify its decision to have the executive privilege review. The case in question involved Trump White House records sought by a congressional committee, the department said Thursday.
“Neither the Supreme Court’s opinion denying the plaintiff’s request for a stay in Thompson nor Justice Kavanaugh’s concurring opinion suggests that a former president can successfully assert executive privilege to prevent the Executive Branch itself from review and use its own records,” the filing said.
Trump filed the lawsuit seeking the special master two weeks after the search warrant was executed at his Mar-a-Lago residence and resort. According to communications the Justice Department made to the magistrate who approved the warrant, the FBI is investigating possible violations of the Espionage Act, criminal mishandling of government documents and obstruction of justice.
Cannon has ordered the Justice Department and Trump’s lawyers to file legal briefs outlining their proposed nominees to serve as special master, along with recommendations on how the review should proceed. The judge indicated Thursday that the parties, in a joint filing due Friday, “consider the defendant’s position with respect to the approximately 100 documents” referred to in the request filed by the DOJ.
In addition, the judge has ordered Trump to file a formal response by 10 a.m. Monday to the Justice Department’s request that the judge stay parts of his special master order while the appeal continues.
Prosecutors told Cannon that if she did not accept their request to stay parts of his decision by September 15, they would seek intervention from the 11th US Circuit Court of Appeals.
This story has been updated with additional details.