The DOJ’s widely expected escalation of the legal fight came one day after a Trump-appointed judge rebuffed prosecutors’ request for a stay.
The Justice Department has asked a federal appeals court to lift a judge’s order blocking criminal investigators from accessing about 100 documents with national security classification markings recovered from former President Donald Trump’s Mar-a-Lago compound last month.
In a filing with the 11th Circuit Court of Appeals in Atlanta Friday night, prosecutors said the government is facing irreparable harm as a result of U.S. District Court Judge Aileen Cannon’s ruling putting the potentially classified records off-limits to the investigative team until an outside expert conducts a review of them and considers Trump’s objections to their seizure.
“The court’s order hamstrings that investigation and places the FBI and Department of Justice … under a Damoclean threat of contempt,” DOJ lawyers said in their 29-page filing, adding, “It also 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] counsel.”
The Justice Department’s widely expected escalation of the legal fight came one day after the Trump-appointed judge rebuffed prosecutors’ request for a stay that would essentially carve out the national security-related records — some bearing markings such as “Top Secret/SCI” — from the outside oversight Trump’s legal team requested.
The filing was an unsparing rejection of Cannon’s handling of the entire matter, saying it has jeopardized national security, is based on flimsy or baseless interpretations of executive privilege and could enable further obstruction of efforts to recover additional missing documents.
“The government’s need to proceed apace is heightened where, as here, it has reason to believe that obstructive acts may impede its investigation,” prosecutors wrote.
Though Cannon purported to permit the FBI to take certain steps in its criminal investigation, DOJ said her guidance was so sparse that it left the FBI “to discern that line for themselves on pain of contempt should the court later disagree with their judgments — a threat that will inevitably chill their legitimate activities.”
The inability of federal prosecutors to advance their criminal probe has complicated separate efforts by the intelligence community to assess the harm that may have been caused by their improper storage in Trump’s unsecured storage room, prosecutors say, contending that the criminal investigation is inextricably tied to the national security review.
And prosecutors suggested that the restrictions on the FBI’s criminal work would prevent investigators from determining what may have once resided in dozens of empty folders, also bearing classification marks, found among Trump’s belongings.
“The injunction also appears to bar the FBI and DOJ from further reviewing the records to discern any patterns in the types of records that were retained, which could lead to identification of other records still missing,” prosecutors indicated in the filing.
The Justice Department’s filing Friday at the 11th Circuit makes clear that prosecutors continue to object strongly to any role for a special master in connection with potentially classified documents. In addition, prosecutors suggest that a portion of one of Cannon’s orders directing that Trump’s lawyers be provided with copies of all the seized records is another improper intrusion on the Justice Department’s prerogatives.
“Yet the district court here ordered disclosure of highly sensitive material to a special master and to Plaintiff’s counsel—potentially including witnesses to relevant events—in the midst of an investigation, where no charges have been brought,” prosecutors wrote.
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