DOJ appeals federal judge's ruling appointing a special master to review records seized from Mar-a-Lago

DOJ appeals federal judge's ruling appointing a special master to review records seized from Mar-a-Lago
Attorney General Merrick Garland, former President Donald Trump.Chip Somodevilla/Getty Images, Brandon Bell/Getty Images
  • The DOJ has appealed a federal judge's order for a special master to review Mar-a-Lago records.
  • It sought a partial stay of Judge Aileen Cannon's ruling that would allow it to review a set of 100 classified documents seized in the Mar-a-Lago search.

The Justice Department on Thursday appealed a federal judge's ruling ordering the appointment of a special master to review records seized from Mar-a-Lago last month and sift out those that could be protected by attorney-client or executive privilege.

In a 21-page court filing, the Justice Department also requested a partial stay on Judge Aileen Cannon's ruling, saying that her order had effectively prevented the intelligence community from conducting a separate assessment of the potential national security risks posed by former President Donald Trump's handling of classified materials.

"The intelligence community's review and assessment cannot be readily segregated from the Department of Justice's and Federal Bureau of Investigation's activities in connection with the ongoing criminal investigation, and uncertainty regarding the bounds of the court's order and its implications for the activities of the FBI has caused the intelligence Community, in consultation with DOJ, to pause temporarily this critically important work," the Justice Department said.

It continued: "Moreover, the government and the public are irreparably injured when a criminal investigation of matters involving risks to national security is enjoined."

Cannon in her ruling this week ordered the appointment of a special master to review all of the roughly 11,000 documents that were seized from Mar-a-Lago.


But the DOJ on Thursday said it sought a stay only with respect to records with classification markings — a set of 100 documents — that were recovered in the search "because those aspects of the Order will cause the most immediate and serious harms to the government and the public."

The department said in its filing that it would "likely" succeed in its appeal for a number of reasons:

  • Trump "does not and could not assert that he owns or has any possessory interest in classified records," or "that he has any right to have those government records returned to him."
  • He cannot "advance any plausible claims of attorney-client privilege" with respect to the classified documents that would bar the government from reviewing or using them in its criminal investigation.
  • Supreme Court precedent indicates that, even if Trump could assert executive privilege over any of the classified records, any such claim "would be overcome by the government's 'demonstrated, specific need' for that evidence ... Among other things, the classified records are the very subject of the government's ongoing investigation."

Prosecutors also said in their filing that allowing the government to review the set of classified documents wouldn't impose "cognizable harm" on Trump, nor would it disrupt the special master's review of the other thousands of documents that were recovered from Mar-a-Lago, including any personal records that are potentially subject to attorney-client privilege.

"The government has already reviewed the classified records, and the Court's order contemplates that it may continue to do so for certain national security purposes," the filing said. "A stay would simply allow the government to continue to review and use the same records—which, again, indisputably belong to the government, not Plaintiff—in its ongoing criminal investigation as well."

Thursday's filing is the latest development in the whirlwind month since FBI agents took the extraordinary step of executing a search warrant at the former president's Florida residence. The warrant, which was unsealed days later, indicated that the feds are investigating if Trump violated the Espionage Act when he moved national security documents to Mar-a-Lago, as well as two other federal laws barring the concealment, alteration, or destruction of government records.


Trump has denied wrongdoing and accused the FBI and Justice Department of political persecution and prosecutorial misconduct. He's also cycled through a string of defenses — including that there were no government records at his home, that the FBI had "planted" evidence," and that all the materials he took were declassified — in the weeks since the search.

His defense team later filed a lawsuit asking Cannon to appoint a special master to sift out documents from the seized materials that could be protected by attorney-client or executive privilege.

But the Justice Department pushed back forcefully, urging Cannon to reject the request and saying Trump did not have the right to assert executive privilege over any of the records because "they do not belong to him" and were the property of the US government. They also revealed in a 36-page filing that they had evidence of "likely" efforts to obstruct their ongoing investigation into Trump's handling of national security information.

This story is developing. Check back for updates.