In its application to the U.S. 11th Circuit Court of Appeals, the Justice Department said the lower court’s decision to block criminal investigations from reviewing seized documents marked as classified would cause irreparable harm, writing that “criminal investigation is itself essential to the government’s effort to identify and mitigate potential national security risks.”
“The court order hampers this investigation and puts the FBI and the Department of Justice (DOJ) under threat of Damoclean contempt if the court no longer agrees with the way investigators disaggregated their investigation activities. ‘previously integrated criminal and national security investigation,’ the Justice Department wrote. .
The Justice Department is also asking the appeals court to exclude documents marked as classified from the so-called special master review that Cannon ordered. Noting that Cannon’s order would require these documents to be provided to Trump’s lawyers, prosecutors said there was “no reason to disclose such sensitive information” and that the order required them to “disclose material.” highly sensitive items to a special master and the plaintiff. a lawyer – potentially including witnesses to relevant events – in the midst of an investigation, where no charges have been brought.”
On Friday, the Justice Department instructed the 11th Circuit to take action “as soon as possible.”
The new 11th Circuit filing expedites the Mar-a-Lago research dispute all the way to the appeals court and raises the possibility that the U.S. Supreme Court may also be asked to intervene in the coming weeks.
The Justice Department originally sought the search warrant for Mar-a-Lago after months of negotiations with Trump’s team over documents that were brought from his White House to the Florida resort after he left its functions. The FBI is investigating at least three potential crimes in its investigation: violations of the Espionage Act, unlawful manipulation of government documents, and obstruction of justice.
In his Thursday night order rejecting the Justice Department’s offer to resume his criminal investigation, Cannon questioned whether the 100 or more documents in question were indeed classified, concluding that the matter was in dispute and worth best that it be reviewed by an independent party.
She also rejected Justice Department arguments that the suspension she imposed on her criminal investigation endangered national security. This approach is at odds with the deference courts normally give to government claims about classification and national security.
In their application to the 11th Circuit, prosecutors said the trial court ignored evidence they presented about the risks posed by how government records were stored.
The filing, they said on Friday, “clearly indicates that the documents were stored insecurely for an extended period, and the court injunction itself prevents the government from even beginning to take the necessary steps to determine whether inappropriate disclosures may have occurred or may still occur.”
The criminal investigation bans, prosecutors said, undermined the intelligence community’s evaluative ability to “assess the harm that would result from the disclosure of seized records.”
“The court injunction prevents the FBI – which has primary responsibility for investigating these matters in the United States – from using the records seized in its criminal investigative tools to determine which records were actually disclosed, to whom and under what circumstances,” the Justice Department told the appeals court.
Cannon also concluded that the classification designations were questionable without the Trump team presenting the kind of evidence — such as statements — that would suggest the materials were in fact unclassified. Trump has claimed in media appearances that he declassified documents he took to Mar-a-Lago, but his lawyers have yet to make that claim in court papers.
Cannon has repeatedly acknowledged in court rulings that his justification is based in part on Trump’s status as a former president, writing Thursday that “principles of fairness” require him to “consider the specific context at issue, and that this consideration is inherently affected by the position previously held by the Applicant.”
In its appeal to the 11th Circuit, the Justice Department wrote that none of the 100 documents marked as classified could be Trump’s personal files – a type of claim he is trying to make to keep some of the documents out of the public record. evidence.
“None of these justifications applies to documents bearing classification marks: the marks establish on the face of the documents that they are not [Trump]personal property,” the ministry writes.
The case now lands in circuit court where six of the 11 active judges are appointed by Trump. It will go to a panel of three judges randomly selected from the court. A panel including some of the appeals judges chosen by the former president could still be sympathetic to the Justice Department, given the deference the government typically shows when declaring national security is at risk.
There is also skepticism among outside legal observers of Cannon’s decision to intervene in the first place, given that a separate judge in Florida approved the search warrant and the investigation itself is being conducted by a grand jury in DC.
Cannon — a 2020 appointee by then-President Trump — was randomly assigned the lawsuit Trump filed two weeks after the FBI executed the search warrant.
Documents marked as classified are not Trump’s property, DOJ says
The Justice Department has argued that Trump’s attempts to assert privileges are weak — if he even did them at all.
“Neither [Trump] nor did the court suggest that they might be subject to solicitor-client privilege. [Trump] never even attempted to make or substantiate any assertion of executive privilege. Even if it did, no such assertion could justify restricting the review and use of these records by the executive branch for any number of independent reasons.”
The Justice Department also takes issue with Trump going to court to try to block investigators from accessing classified documents seized at Mar-a-Lago and Cannon intervening.
Trump “does not have standing at least as to the discrete set of documents with classification marks because these documents are the property of the government, over which the executive branch has exclusive control, and in which the plaintiff does not has no ownership interest,” the DOJ writes.
Government prosecutors say the courts can only intervene in exceptional circumstances, such as when constitutional rights are violated during a search or when a subject of the search has a special need to preserve seized material, and that “it cannot extend to these folders”.
“The District Court found that other documents in which the plaintiff [Trump] might have a recognizable interest cannot be easily separated from those for which it has none. But this reasoning is inapplicable to documents with classification marks, which are easily identifiable and already separated from other seized materials,” the department writes.
This story has been updated with additional details.