DOJ to appeal special lead ruling, arguing classified documents are not Trump ‘personal records’

WASHINGTON — The hundreds of pages of classified government records seized from Donald Trump’s Mar-a-Lago estate last month are not the former president’s “personal records” and he has no right to them, the Justice Department said in a court filing. On Thursday, he said, the government would appeal a judge’s ruling on the matter.

The Justice Department will appeal U.S. District Judge Aileen Cannon’s order for a special master to review documents seized during a search of Trump’s Mar-a-Lago home, according to a filing Thursday. The Justice Department said it will file its appeal with the United States Court of Appeals for the 11th Circuit.

The department also asked for a partial stay of Cannon’s ruling pending an appeal, saying “the government and the public are irreparably injured when a criminal investigation is ordered into matters that pose risks to national security.”

Parts of Cannon’s ruling — specifically those requiring the government to do anything with the classified records it seized — would “cause the most immediate and serious harm to the government and the public.” The government also wrote, in an unusual line, that the order could “hinder efforts to locate any additional classified files that are improperly stored.”

“The classified records are government property over which the Executive Branch has control and in which Plaintiff has no cognizable property interest,” the Justice Department wrote.

Cannon, a 41-year-old Trump appointee who was confirmed in the southern district of Florida at the end of the Trump administration, accepted Trump’s request for a special teacher on Monday. Her decision was widely applauded by the legal community, especially given her unprecedented decision to grant special master authority not only for documents protected by attorney-client privilege but also for Trump’s alleged claims of executive privilege.

The Justice Department said there was no doubt the classified documents the FBI recovered from Mar-a-Lago belonged to the US government.

“The classification markings demonstrate on the face of the documents that these are government records, not plaintiff’s personal records,” the government wrote. “The government’s review of these records does not raise plausible claims of attorney-client privilege because such confidential records do not contain communications between Plaintiff and his private attorneys. And for a variety of reasons, no possible claim of executive privilege could justify the limiting Executive Branch review and the use of classified records at issue here.”

Trump “does not claim and cannot claim that he owns or has any proprietary interest in classified records, that he has any right to have those government records returned to him, or that he can make reasonable claims of attorney-client privilege. records that would prevent the government from examining or using them,” the DOJ wrote.

Former President Donald Trump at a rally on Sept. 3, 2022, in Wilkes-Barre, Pa. (Spencer Platt/Getty Images)

When the FBI executed a search warrant at Mar-a-Lago a month ago, the Justice Department says it found more than 11,000 pages of government documents that — under the Presidential Records Act — belonged in the custody of the National Archives. They also found hundreds of pages of classified documents, despite a Trump lawyer certifying that the former president no longer had classified files after he turned over 38 classified documents in June in response to a grand jury subpoena. Earlier this year, Trump handed over boxes of documents to the National Archives containing more than 700 pages of classified files.

The government argued there was evidence the Trump team “hid and removed” additional classified documents stored at Mar-a-Lago before the FBI’s investigation in August.

A federal judge found probable cause that evidence of crimes would be found at Trump’s Mar-a-Lago estate and signed the FBI’s warrant to search the property. In fact, the FBI found more than 100 classified files that Trump was not supposed to have, the DOJ said in a court filing last week, along with more than 11,000 government documents that normally belong in the National Archives.

There is nothing in the law to suggest “that a former President can successfully assert executive privilege to prevent the Executive Branch itself from reviewing and using its own records,” the Justice Department wrote Thursday.

“A stay would simply allow the government to continue to review and use the same records — which, again, arguably belong to the government, not the Plaintiff — in its ongoing criminal investigation,” the department added.

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