Judge denies DOJ request to regain access to some documents seized in Trump search

Washington — A federal judge on Thursday rejected a request from the Justice Department to allow its investigators to regain access to the roughly 100 documents marked classified that were seized by the FBI during its search at former President Donald Trump's Florida residence.

U.S. District Judge Aileen Cannon declined to put on hold any part of her Sept. 5 ruling that stopped the Justice Department from using any of the approximately 11,000 documents taken from Mar-a-Lago during the Aug. 8 search for investigative purposes, pending the review of the materials by an independent arbiter known as a special master.

In her 10-page order, Cannon pushed back on two of the premises outlined by the Justice Department in its motion: that the roughly 100 documents at the center of the request are classified records and that Trump could not have a "possessory interest in any of them," and that Trump does not have a plausible claim of privilege as to any of these records.

"The court does not find it appropriate to accept the government's conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion," she wrote.

Cannon said in her order that while she agrees with the Justice Department that "the public is best served by evenhanded adherence to established principles of civil and criminal procedure," regardless of who is involved, "it is also true, of course, that evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice."

Federal prosecutors asked Cannon last week to allow the government to access a batch of just over 100 documents bearing classification markings for use in its ongoing criminal probe into Trump's handling of sensitive records, but the judge's order keeps those materials from being used by investigators for now.

The Justice Department also asked Cannon to lift a second part of her Labor Day order that required the government to disclose the records with classification markings to a special master for review. 

Cannon authorized the appointment of a special master to sift through the materials seized by the FBI during the Aug. 8 search for any that may be subject to claims of attorney-client or executive privileges and named Judge Raymond Dearie, the former chief judge for the U.S. District Court for the Eastern District of New York, to the role.

Federal prosecutors argued in their motion for a stay that if Cannon's ruling shielding the documents was allowed to stand, the government and broader public would suffer "irreparable harm from the undue delay to the criminal investigation." The Justice Department lawyers, including its top national security officials, also said temporarily halting their investigation risked harming the nation's national security and intelligence interests.

But Trump's legal team opposed the Justice Department's request, claiming in a filing Monday that some of the seized records with classification markings may not be classified anymore. They also characterized the controversy surrounding Trump's alleged improper removal and storage of classified information as a "document storage dispute that has spiraled out of control."

Cannon's decision to decline the Justice Department's request for a stay paves the way for the government to file an appeal to the 11th U.S. Circuit Court of Appeals, as prosecutors told the court it intended to do.

The decision from Cannon not to restore the Justice Department's access to the seized records is the latest turn in the long-running effort by the National Archives and Records Administration to retrieve records taken by Trump to Mar-a-Lago at the end of his presidency in January 2021.

When the FBI conducted its search at the South Florida property on Aug. 8, agents seized 33 items, boxes or containers from a storage room and from desks in Trump's office that contained 103 documents marked "confidential," "secret" or "top secret," according to a detailed property list made public this month.

Federal investigators also took empty folders with classified banners, along with printed news articles, books, photographs and articles of clothing, government lawyers said.