The Department of Justice has asked the 11th Circuit Court of Appeals to reverse a Trump-appointed district judge’s order requiring a halt to use of materials seized during the 8 August search of former president Donald Trump’s home in any criminal investigation.
On Monday, US District Judge Aileen Cannon temporarily blocked the federal government’s law enforcement apparatus from acting on what most legal experts say is overwhelming evidence that Mr Trump violated several federal laws, pending the appointment of a third-party special master to review the thousands of documents and other items seized during the search to determine whether any are covered by attorney-client or executive privilege.
According to court documents, FBI agents found over 10,000 non-classified government documents spread across 27 boxes when they searched the twice-impeached ex-president’s home and office at his Mar-a-Lago country club in Florida.
Agents also discovered more than 100 “unique documents with classification markings”, including three stored in Mr Trump’s desk. Classification levels ranged from confidential – the lowest level of classification in the US system – to the highest, top secret.
Judge Cannon said the government had to stop using the thousands of government-owned documents seized during search of his property to further an ongoing criminal investigation into the ex-president, but allowed a national security damage assessment by the Office of the Director of National Intelligence to continue.
Legal experts have assailed Judge Cannon’s ruling as having little grounding in fact or case law, in no small part because there is no way for Mr Trump to claim executive privilege over documents that are by law the property of the executive branch.
The department also asked Judge Cannon to issue a stay keeping her order from going into effect while the appeal before the 11th Circuit is pending, but only with respect to a set of 100 highly classified documents.
Prosecutors said they would request a stay from the appeals court if Judge Cannon does not act on their request by 15 September. They also argued that aspects of her order “will cause the most immediate and serious harms to the government and the public” if it is allowed to take effect.
“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 wrote.
They added that any attempt to assert executive privilege over those records would fail because of Supreme Court precedent “makes clear that any possible assertion of privilege that Plaintiff might attempt to make over the classified records would be overcome by the government’s ‘demonstrated, specific need’ for that evidence”.
Prosecutors further argued that the the ODNI assessment she previously allowed to continue has had to be halted because that process “review and assessment cannot be readily segregated” from the FBI “activities in connection with the ongoing criminal investigation”. They said “ uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI” has caused the IC and Justice Deparment “to pause temporarily this critically important work”.
“Moreover, the government and the public are irreparably injured when a criminal investigation of matters involving risks to national security is enjoined,” they added.