Justice Department challenges ruling on Mar-a-Lago search

DOJ also tells judge it does not believe her order barred department from briefing congressional leaders on classified records

Mar-a-Lago is seen Aug. 16, a week after the FBI raided the home of former President Donald Trump, in Palm Beach, Fla. (Nathan Posner/Anadolu Agency via Getty Images)
Mar-a-Lago is seen Aug. 16, a week after the FBI raided the home of former President Donald Trump, in Palm Beach, Fla. (Nathan Posner/Anadolu Agency via Getty Images)
Posted September 8, 2022 at 6:15pm

The Justice Department asked a federal judge Thursday to halt part of her order that would allow a special master to screen documents seized from former President Donald Trump’s private club, Mar-a-Lago.

In filings in the U.S. District Court for the Southern District of Florida, the DOJ said it intends to appeal the order and asked Judge Aileen Cannon to allow prosecutors to further review and use classified records found at Mar-a-Lago in a criminal probe.

But the Justice Department also told Cannon that it did not believe her order barred federal investigators and intelligence agents from “briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered.”

“The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing,” the Justice Department said.

Senate Intelligence Chairman Mark Warner, D-Va., said the panel has requested, on a bipartisan basis, a damage assessment of any national security threat posed by the mishandling of this information.

Cannon issued a ruling Monday that temporarily ordered the DOJ to stop review of the documents for its criminal investigation, finding that its internal review for attorney-client privilege was inadequate. Cannon said the government could continue to review the documents to assess the damage the documents’ improper storage may have caused to national security.

'Uniquely harmful'

The department in the motion argued the order may hinder the Justice Department’s investigation into potential damage to national security caused by Trump’s storage of highly classified documents at his club.

The injunction “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,” the DOJ wrote.

Separately, the DOJ argued against allowing a special master to review classified documents found at Mar-a-Lago because they are so sensitive that sharing them with a special master would risk their public disclosure.

The Justice Department noted it found itself with the ability to ask witnesses about the documents, but not read the documents themselves.

“Even so, the prohibition on the review and use of the classified records is uniquely harmful here, where the criminal investigation concerns the retention and handling of those very records, with the concomitant national-security concerns raised by that conduct,” the DOJ brief said.

If Cannon does not rule on the stay by Sept. 15, the DOJ said it would seek relief from the U.S. Court of Appeals for the 11th Circuit.

Search conducted

Last month the FBI searched Mar-a-Lago after finding evidence that Trump may have stored some of the nation’s most sensitive documents at the club. The judge who approved the search allowed public release of the receipt for documents seized in the search, which included 11 sets of documents with some form of classification, including four marked as “Top Secret.”

That judge also released documents showing the Justice Department is investigating the former president for potential violations of espionage laws, mishandling of classified information and destruction of government records.

The search followed an 18-month dispute between Trump and the National Archives and Record Administration over documents the former president took from the White House. Earlier this year, Trump sent 15 boxes of documents to the archives, which the FBI said included 184 documents with classified information and 25 marked as “Top Secret,” according to court records.

Trump sought the special master review last month, arguing the FBI may have seized information subject to executive privilege, personal documents and attorney-client privilege.