The Justice Department said in a court filing Thursday that the hundreds of pages of classified government records seized from Donald Trump’s Mar-a-Lago estate last month are not the former president’s “personal records,” and he has no right to possess them.
According to the notification filed Thursday, the Justice Department will appeal U.S. District Judge Aileen Cannon’s decision to appoint a special master to examine the documents seized during the search of Trump’s Mar-a-Lago home. The Justice Department has announced that it will file an appeal with the United States Court of Appeals for the Eleventh Circuit.
The department also requested a partial stay of Cannon’s ruling while the appeal is being heard, claiming that “the government and the public are irreparably harmed when a criminal investigation of matters involving national security risks is enjoined.”
Cannon has given Trump until 10 a.m. ET Monday to respond to the Justice Department’s motion for a partial stay of her order granting the special master request.
Parts of Cannon’s decision, particularly those prohibiting the government from doing anything with the classified records it had seized, would “cause the most immediate and serious harms to the government and the public.” In an unusual line, the government also stated that the injunction could “hinder efforts to identify the existence of any additional classified records that are not being properly stored.”
The Justice Department wrote, “The classified records are government property over which the Executive Branch has control and in which Plaintiff has no cognizable property interest.”
Cannon, a 41-year-old Trump appointee who was confirmed to the Southern District of Florida near the end of Trump’s presidency, granted Trump’s request for a special master on Monday. Her decision was widely criticized by the legal community, particularly given her unprecedented decision to grant a special master authority not only over documents protected by attorney-client privilege, but also over Trump’s alleged claims of executive privilege.
The Justice Department stated unequivocally that the classified documents recovered by the FBI from Mar-a-Lago belonged to the United States government.
“The classification markings establish on the face of the documents that they are government records, not Plaintiff’s personal records,” the government wrote. “Because such classified records do not contain communications between Plaintiff and his private attorneys, the government’s review of those records does not raise any plausible attorney-client privilege claims. For a variety of reasons, no potential claim of executive privilege could justify limiting the Executive Branch’s review and use of the classified records at issue here. “Trump does not and could not assert that he owns or has any possessory interest in classified records; that he has any right to have those government records returned to him; or that he can advance any plausible claims of attorney-client privilege with respect to such records that would bar the government from reviewing or using them,” the court said “The DOJ wrote.
When the FBI executed a search warrant at Mar-a-Lago one month ago, the Justice Department claims it discovered more than 11,000 pages of government documents that should have been in the custody of the National Archives under the Presidential Records Act. They also discovered hundreds of pages with classified markings on documents, despite the fact that a Trump lawyer testified that the former president no longer possessed classified records after turning over 38 classified documents in response to a grand jury subpoena in June. Earlier this year, Trump turned over to the National Archives boxes of documents containing over 700 pages of classified information.
The government claimed there was evidence that the Trump team “concealed and removed” additional classified documents stored at Mar-a-Lago prior to the FBI’s August search.
A federal magistrate judge found probable cause that evidence of crimes would be discovered at Trump’s Mar-a-Lago estate and approved the FBI’s search warrant. In fact, the FBI discovered more than 100 classified records that Trump was not supposed to have, according to the DOJ in a court filing last week, in addition to the more than 11,000 government documents that should have been in the National Archives.
There’s nothing in the law that would suggest “that a former President can successfully assert executive privilege to prevent the Executive Branch itself from reviewing and using its own records,” the Justice Department wrote Thursday.
