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BREAKING: DOJ Appeals Mar-A-Lago Special Master Order On Grounds Of 'Umm, You Know We're Part Of The Executive Branch, Right?'

Luckily the 11th Circuit is full of reasonable jurists, fiercely protective of precedent and norms ... LOL.

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(Photo by PAUL J. RICHARDS/AFP/Getty Images)

This afternoon, the Justice Department noticed an appeal of US District Judge Cannon’s appointment of a special master to sort through records seized in the August 8 search of the former president’s country club for improperly retained government property. It simultaneously requested a stay of the parts of her order which bar it from using those documents in its criminal investigation, but only insofar as it pertains to documents bearing classified markings.

Judge Cannon’s ruling on Monday not only acceded to Donald Trump’s request for special master to filter out attorney-client documents, it empowered the master to pull out personal property as well as anything which might be subject to a claim of executive privilege. And, critically, it barred prosecutors from using any of the seized items in the ongoing criminal investigation. In a minor concession, the court did allow the Intelligence Community to continue its assessment of the fallout from highly sensitive classified material being expropriated by the former occupant of the Oval Office and taken God only knows where.

As a threshold matter, prosecutors remind the court that there is no circumstance under which Donald Trump could ever claim a possessory interest in classified documents, which are definitionally government property.

“Plaintiff 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 as to such records that would bar the government from reviewing or using them,” they argue. This moots the analysis Judge Cannon was kind enough to do on Trump’s behalf to justify her equitable jurisdiction under Richey v. Smith, 515 F.2d 1239  — Trump can’t be injured by being deprived of classified documents which never belonged to him in the first place.

And furthermore, whatever residual post-presidency executive privilege Judge Cannon is conjuring out of dicta from the National Archives dispute over the January 6 Congressional inquiry (which Trump lost!) and US v. Nixon (which Nixon lost!), there has never been a suggestion that a sitting president, much less a former one, can hoard classified documents as a means of thwarting criminal prosecution by the executive branch.

Finally, the Justice Department points out that the FBI is itself a part of the Intelligence Community. The court has already acknowledged that the IC’s interest in the leakage of classified documents is more important than whatever interest Trump’s lawyers are claiming here. (Or not claiming, since they handed in a bunch of irrelevant nonsense, relying on Judge Cannon to fill in the blanks for them.)

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It’s simply not workable to exclude the FBI from that intelligence review and from assessing any criminal conduct which might have arisen from the wrongful possession of highly sensitive — not to say valuable — government secrets.

The Intelligence Community’s review and assessment cannot be readily segregated from the Department of Justice’s (“DOJ”) and Federal Bureau of Investigation’s (“FBI”) 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.

And not for nothing, but there were upwards of 100 documents with classified markings in the boxes removed from Mar-a-Lago, plus a whole bunch of empty classified folders. And the FBI has a pretty strong interest in figuring out what was in those folders and where it went.

The FBI would be chiefly responsible for investigating what materials may have once been stored in these folders and whether they may have been lost or compromised—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 highly relevant to advancing the criminal investigation.

Prosecutors have asked Judge Cannon to issue an immediate stay on the parts of her order which bar them from using the seized classified documents in their investigation and force them to disclose them to a special master. If the court does not issue the stay, the DOJ will seek immediate relief from the 11th Circuit.

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Tomorrow, we’ll get more information about the negotiations between Trump and prosecutors over the identity and remit of the special master. Today’s filings only touch lightly on that, but prosecutors seem willing to tip their hands a bit more since Judge Cannon issued her bizarre ruling. The Department now says that it will “make available to Plaintiff copies of all unclassified documents recovered during the search,” as well as returning any personal items which “were not commingled with classified records and thus are of likely diminished evidentiary value.” Similarly, prosecutors filed a motion to unseal a status report on the DOJ’s filter team process.

Whether the government’s relative chattiness is because every revelation makes the former president look guiltier is unclear. But if Trump is going to rattle the cage and make the DOJ put his bullshit on the public docket, we’re not mad about it.

Trump v. United States [Docket via Court Listener]
United States v. Sealed Search Warrant [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

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