In addition to his appeal, the Justice Department asked U.S. District Judge Ellen Cannon, the Trump appointee who ordered the special master, to allow him to continue reviewing documents being conducted in the FBI’s criminal investigation — a review which the judge adjourned. Prosecutors argued that the criminal investigation could not be divorced from the intelligence community review.” Applying the order to classified records would thus frustrate the government’s ability to conduct an effective national security risk assessment and classification review and could prevent necessary remedies in light of this review — at the risk of irreparable harm to our national security and intelligence interests,” the Justice Department wrote in its request for a stay. The Justice Department had strongly opposed the appointment of a special master, who is a third-party attorney charged with reviewing evidence and sifting through privileged documents. The department argued to Cannon that an independent review was not necessary given the DOJ’s internal filtering practices that had been used in the search. In her order Monday granting Trump’s request for the special master, Cannon halted any use of the seized material for the Justice Department’s criminal investigation. He said, however, that the intelligence community’s assessment could continue. The Justice Department’s filing Thursday shed light on how the two efforts are connected. “An injunction against the use of classified records in a criminal investigation could hinder efforts to identify the existence of any additional classified records that are not properly stored — which itself presents the potential for continued national security risk,” the DOJ. Prosecutors pointed to empty folders labeled “classified banners” found at Mar-a-Lago during the search. “The FBI will primarily be responsible for investigating what material may have once been stored in these files and whether they may have been lost or tampered with — steps that, again, may require the use of grand jury subpoenas, search warrants and other criminal investigative tools and could lead to evidence that would also be extremely important to the furtherance of the criminal investigation,” the DOJ said. The attorney general described the intelligence community review that Cannon was allowing to proceed as “just one aspect of the administration’s overall effort to respond to and mitigate any national security risks.” For example, determining the “likelihood that improperly stored classified information may have been accessed by others and compromised” is a “key aspect of the FBI’s criminal investigation,” prosecutors added. “Departments and agencies in the IC will then review this information to determine whether they should treat certain sources and methods as compromised,” prosecutors said.
Pushback on executive privilege by role-playing with classified documents
Cannon had also ordered the independent review to look for documents potentially covered by executive privilege — in addition to concerns about attorney-client privilege that typically focus on a special master. The move, described as novel by both the Justice Department and outside legal experts, is set to prolong the review as the criminal investigation continues to be hampered by Cannon’s order. In asking that criminal investigators be allowed to access the classified documents, the Justice Department on Thursday rejected the idea that the privilege could ever be applied to classified material. “Supreme Court precedent makes clear that any potential assertion of privilege that Plaintiff might attempt to make over classified records would be overcome by the government’s ‘demonstrated, special need’ for that evidence,” the department said, citing the 1974 case United States v. Nixon. “Among other things, the classified files are themselves the subject of the government’s ongoing investigation.” The department also looked at how Cannon’s order cited a recent Supreme Court decision, along with a concurring statement by Justice Brett Kavanaugh, to justify her move to cover the executive review privilege. The case involved Trump White House records sought by a congressional committee, the department noted Thursday. “Neither the Supreme Court’s opinion denying Plaintiff’s request for a stay in Thompson nor Justice Kavanaugh’s concurring statement suggests that a former President can successfully assert executive privilege to prevent the Executive Branch itself from examining and using its own his files,” the filing said. Trump filed suit seeking the special master two weeks after a search warrant was executed at his Mar-a-Lago residence and resort. According to filings the Justice Department made with the judge who approved the warrant, the FBI is investigating possible violations of the Espionage Act, criminal mishandling of government documents and obstruction of justice. Cannon ordered the Justice Department and Trump’s lawyers to submit legal briefs on their proposed nominees to serve as special master, along with recommendations on how the review would proceed. The judge on Thursday ordered the parties, in a joint filing due Friday, to “consider the defendant’s position on the approximately 100 documents” listed in the application filed by the DOJ. Additionally, the judge ordered Trump to file a formal response by 10 a.m. Monday to the Justice Department’s request that the judge stay parts of her special master order while the appeal proceeds. Prosecutors told Cannon that if she did not grant their request to stay parts of her sentence by Sept. 15, they would seek intervention from the 11th U.S. Circuit Court of Appeals. This story has been updated with additional details.
