The Justice Department asked a federal appeals court on Friday to shut down the work of an independent arbiter who was appointed last month to review documents seized during an FBI search of former President Donald Trump's Florida estate.
The appeal is the latest salvo in weeks of litigation over the scope of duties of the arbiter, also known as a special master, who was assigned to inspect the records taken in the Aug. 8 search of Mar-a-Lago and weed out any that may be protected by claims of legal privilege.
The special master process has caused some delays to the Justice Department’s investigation into the holding of top-secret documents at the home. But a major hurdle was cleared last month when the U.S. Court of Appeals for the 11th Circuit lifted a temporary bar on the department’s ability to use the seized classified documents as part of its criminal probe.
The move permitted a core aspect of the probe to resume, greatly reducing the odds that the process could have a significant impact on the investigation. Even so, department lawyers returned to the court Friday to ask for the entire special master review to be shut down, saying the judge who made the appointment had no basis for doing so and that Trump was not entitled to an independent review of the seized records or to claim privilege over them.
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“Plaintiff has no plausible claim of executive privilege as to any of the seized materials and no plausible claim of personal attorney-client privilege as to the seized government records — including all records bearing classification markings,” according to the department's brief.
“Accordingly," they added, ”the special-master review process is unwarranted."
The Justice Department says it seized about 13,000 records, including roughly 100 with classification markings, during its court-authorized search in August. The department is conducting a criminal investigation into the retention of those records as well as into whether anyone obstructed its probe.
As part of the investigation, the FBI has interviewed multiple Trump aides, including a lawyer for him who served as a custodian of the records and who in June presented investigators with a signed letter asserting that all the classified records the Justice Department had asked for in a subpoena had been located and turned over.
Agents believed more records remained at the house, returned in August with a search warrant and removed 33 boxes of documents, including material classified at the top-secret level.
Weeks later, the Trump team asked a judge in Florida, Aileen Cannon, to appoint a special master to do an independent review of the records. Cannon agreed, naming a veteran Brooklyn judge, Raymond Dearie, to inspect the records and segregate from the rest of the investigation any documents that could possibly be covered by claims of executive privilege or attorney-client privilege.
The 11th Circuit subsequently lifted Cannon's prohibition on the department's use of the classified documents for its investigation pending Dearie's review, as well as a requirement that the Justice Department provide those specific records to Dearie for his review.
The Supreme Court on Thursday declined a request from Trump's lawyers to intervene in the dispute.
The Justice Department has repeatedly rejected the idea that a special master review was needed, and though it has been able to resume its review of the classified records, it said its investigation remains slowed by its inability to use the much larger set of non-classified documents as part of its probe.
“The district court’s injunction barring review and use of the other seized records harms the government and the public as well,” the department said. “A magistrate judge has already found probable cause to believe that those records may constitute evidence of crimes, and the government has demonstrated a clear need for them.”