By Jack Phillips
Lawyers for the Department of Justice (DOJ) on Tuesday filed a new motion that again seeks a stay in a judge’s order appointing a special master to review documents that were seized during last month’s FBI raid targeting former President Donald Trump’s residence.
In the latest filing, DOJ prosecutors said that they want a “limited” yet “critical” stay of the order so as to continue their review of certain documents. They argue that the materials could potentially “jeopardize national security.”
“These records are at the core of the government’s investigation, and the government’s inability to review and use them significantly constrains its investigation,” the DOJ wrote to Judge Aileen Cannon, a Trump appointee. “The compelled disclosure of records marked as classified to a special master further harms the Executive Branch’s interest in limiting access to such materials absent any valid purpose served by their review.”
Tuesday evening’s filing was issued largely in response to a motion issued by lawyers from Trump earlier this week. His lawyers argued against the DOJ’s request for a stay in Cannon’s order last week approving a special master.
The DOJ lawyers argue that they don’t want possession of all the documents but are seeking “a stay only as to a discrete set of just over 100 records marked as classified—that is, records that were specifically sought by a prior grand jury subpoena, whose unauthorized retention may constitute a crime.”
“Trump instead references other seized records that contain personal information or could be subject to attorney-client privilege, none of which are at issue in this stay motion,” the DOJ also wrote. “As to the records marked as classified, Plaintiff asserts that the government has not ‘proven’ their classification status.”
Also in the filing, the DOJ asserts that the 17-agency Intelligence Community led by Director of National Intelligence Avril Haines has to determine whether Trump’s declassification of those materials was a legitimate order. In public statements, Trump and members of his team have said he declassified a range of materials while he was still president and has indicated that the records taken by the FBI were declassified by him.
In Cannon’s ruling last week, she wrote that the Intelligence Community, which includes the FBI, can continue its review of the materials that were seized from Trump’s home.
“For obvious reasons, the Intelligence Community would have a compelling need to understand which formerly-classified records have now been declassified,” said the DOJ on Tuesday. That includes “why and how” those documents were declassified as well as the “impact of any such declassification,” they wrote.
A day prior, one of Trump’s lawyers, former federal prosecutor Chris Kise, suggested in Monday’s filing (pdf) that the DOJ doesn’t want a special master to review the documents because it would expose malfeasance at the agency.
“The very purpose of a special master is to serve as a neutral third party, with appropriate authorization, reviewing documents to facilitate resolution of the parties’ disagreements,” he wrote.
“In opposing any neutral review of the seized materials, the Government seeks to block a reasonable first step towards restoring order from chaos and increasing public confidence in the integrity of the process,” the filing continued, adding, “A special master is not an agent for either President Trump or the Government.”
Both parties on Sept. 9 each proposed different names of candidates who could serve in the role of a special master—an independent third party who would assist the judge in the legal dispute. Cannon wrote that the yet-to-be-named individual would be tasked with overseeing and reviewing the documents.