On Tuesday, former President Trump’s legal team argued before a federal appeals court that the government has “criminalized a document dispute” and is objecting to a “transparent process that simply provides much-needed oversight” by seeking access to a batch of approximately 100 documents with classification markings seized from his Florida estate.
Trump’s attorneys, James Trusty and Christopher Kise, responded by saying, “This probe of the 45th President of the United States is both unprecedented and misguided.” The government is wrongly trying to outlaw the 45th President’s holding of his own Presidential and personal documents in what is essentially a document storage dispute gone awry.
In a 40-page filing to the U.S. Court of Appeals for the 11th Circuit, Trump’s attorneys argued that the FBI’s seizure of documents from Trump’s South Florida estate, Mar-a-Lago, constitutes “extraordinary circumstances that warrant review by a neutral third party,” and that the Justice Department has not proven that the documents at the heart of its request to the appeals court are classified.
Last but not least, “any little delay to the criminal inquiry will not irreversibly hurt the government,” Trusty and Kise said. To to the court’s opinion, “the injunction does not preclude the Government from initiating a criminal investigation; it just pauses the investigation for a brief period while a neutral third party evaluates the papers in question.”
Attorneys for the Department of Justice said in a late-night filing that the Trump team’s efforts to raise questions about whether the documents in question are classified are a “red herring,” and that even if Trump’s lawyers could show that Trump had declassified the documents, “there would still be no justification for restricting the government’s use of evidence at the center of an ongoing criminal investigation.” Department officials claimed they would “succeed on the merits” of their case to keep the materials secret.
During the FBI’s investigation of Trump’s South Florida property on August 8, federal officials took 33 things, cartons, or containers containing 103 papers marked “confidential,” “secret,” or “top secret,” according to a detailed property list released this month.
After U.S. District Judge Aileen Cannon denied the Justice Department’s attempt to regain access to a portion of the secret papers that were among the confiscated evidence last Friday, the Department appealed to the 11th Circuit. Until the documents were reviewed by a special master, Cannon ruled that the Justice Department could not use them in its ongoing criminal investigation into Trump’s handling of sensitive government records.
Federal prosecutors filed an emergency petition with the 11th Circuit Court of Appeals asking the court to stay Cannon’s order keeping the subset of sensitive records off-limits to investigators. They claimed the decision “hamstrings” its criminal probe and “irreparably harms the government by enjoining critical steps of an ongoing criminal investigation and needlessly compelling disclosure of highly sensitive records,” including to Trump’s attorneys.
The Justice Department lawyers argued in a 29-page brief that the order “impedes the government’s efforts to preserve the nation’s security” by prohibiting inspection and use of the material for investigation reasons.
Judge Raymond Dearie has been designated as the special master by Cannon, who was appointed to the federal bench by Trump. Her order preventing federal investigators from using the classified information remains in effect. Dearie’s job is to go through the nearly 11,000 documents the FBI found in Trump’s Mar-a-Lago storage room and office, looking for any private files or information that could be protected by attorney-client or executive privileges.
Judge Dearie, who has served on the federal district court in Brooklyn for many years, met with attorneys from the Justice Department and Trump’s team on Tuesday. The parties were asked to submit potential agenda items in advance at his request.
On Monday, federal prosecutors sent a letter suggesting the conference discuss the “exact mechanics” of reviewing the records, as well as other aspects of the order appointing Dearie as special master and future progress evaluations.
Separately, Trump’s attorneys wrote to Dearie to object to her planned Oct. 7 deadline for the parties to complete sorting and labeling the Mar-a-Lago seizure records. In addition, they argued that Trump shouldn’t be required to “fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the district court’s order” if Dearie succeeds in getting him to reveal details about the possible declassification of the sensitive materials taken from his South Florida residence.