By Sarah N. Lynch
WASHINGTON (Reuters) – Lawyers for former President Donald Trump said on Monday they oppose a request by the U.S. Justice Department to continue reviewing classified documents the FBI seized from his Florida estate last month in an ongoing criminal investigation.
In a court filing, his lawyers also asked U.S. District Judge Aileen Cannon to require an independent arbitrator, called a special master, to include the roughly 100 classified documents in his review of more than 11,000 records recovered during of the approved by the court of August. 8 search at Trump’s Mar-a-Lago estate in Palm Beach.
Trump is under investigation for keeping government records, some classified as top secret, at Mar-a-Lago after he leaves office in January 2021. The administration is also investigating possible obstruction of justice.
His lawyers said in the filing that Trump disputes the Justice Department’s claim that the 100 files in question are actually classified and reminded Cannon that a president generally has broad powers to declassify records.
But they did not suggest Trump had declassified the documents — a claim he has made on social media but not in formal court filings.
“Disagreement remains as to the classification status of the documents,” they wrote. “The government’s position therefore presupposes a fact that has yet to be ascertained.”
The conflict between the Justice Department and Trump over how to handle classified material puts Cannon in the hot seat to make a decision. If it decides the Justice Department can’t continue to rely on the classified materials for its criminal investigation or insists on letting the special master review them, prosecutors have threatened to appeal to the Atlanta-based 11th U.S. Circuit Court of Appeals.
“In what is at its core a document storage controversy that has spiraled out of control, the government wrongfully seeks to criminalize the 45th President’s possession of his own presidential and personal records,” Trump’s lawyers wrote.
“Therefore, the government should not be allowed to bypass the process and jump straight to a foregone conclusion,” they added.
The probe into the documents is one of several federal and state probes Trump has faced since his time in office and into private businesses. He has suggested he might run for president again in 2024, but has made no commitments.
About two weeks after the FBI searched Trump’s home, his lawyers filed a civil lawsuit seeking the appointment of a special master to review the seized records for material that could be covered by attorney-client privilege or executive privilege — a legal doctrine which may protect certain presidential records from disclosure.
The Justice Department has also opposed the appointment of a special master to review the records for claims of executive privilege, saying the records do not belong to the former president.
In ruling in favor of Trump’s request for a special master last week, Cannon rejected the Justice Department’s arguments that the records belong to the government and that because Trump is no longer president he cannot claim executive privilege. Cannon was appointed to the bench by Trump in 2020 just months before he left office.
If the special master rules that some of the material is covered by Trump’s claims of privilege, it could hamper the government’s investigation.
Both sides proposed their own list of two potential candidates for the position late Friday. They are expected to brief the court later Monday on their views on each other’s proposed nominees.
If the special master rules that some of the material is covered by Trump’s claims of executive privilege, it could hamper the administration’s investigation.
(Reporting by Sarah N. Lynch and Doina Chiacu; Editing by Will Dunham)