Trump urges appeals court to keep shielding records from Justice Department

Washington — Former President Donald Trump's legal team on Tuesday urged a federal appeals court to turn down a request from the Justice Department to allow investigators to regain access to a tranche of roughly 100 documents with classification markings seized from his Florida estate, claiming the government has "criminalized a document dispute" and is objecting to a "transparent process that simply provides much-needed oversight." 

"This investigation of the 45th President of the United States is both unprecedented and misguided," James Trusty and Christopher Kise, Trump's lawyers, wrote in their response. "In what at its core is a document storage dispute that has spiraled out of control, the government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records."

In their 40-page filing, Trump's lawyers told the U.S. Court of Appeals for the 11th Circuit that the FBI's seizure of documents from Trump's South Florida home, Mar-a-Lago, presents "extraordinary circumstances that warrant review by a neutral third party," and said the Justice Department has not proven that the documents at the crux of its request to the appeals court are classified. 

A detailed property list from the FBI made public this month shows that federal 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" during the FBI's Aug. 8 search at the South Florida property.

"Ultimately, any brief delay to the criminal investigation will not irreparably harm the government," Trusty and Kise wrote. "The injunction does not preclude the Government from conducting a criminal investigation, it merely delays the investigation for a short period while a neutral third party reviews the documents in question."

In a late-night filing replying to Trump's claims, Justice Department lawyers called the Trump team's efforts to raise questions about whether the documents in question are classified a "red herring," adding that even if Trump's lawyers could show the former president had declassified the documents, "there would still be no justification for restricting the government's use of evidence at the center of an ongoing criminal investigation." The department argued that it "is likely to succeed on the merits" of its arguments about the documents' classification status.

Last Friday, the Justice Department turned to the 11th Circuit after U.S. District Judge Aileen Cannon rejected its request to restore access to the tranche of records marked classified that were among the material seized. Cannon barred the Justice Department from using the documents in its ongoing criminal investigation into Trump's handling of sensitive government records, pending a review by a third-party arbiter known as a special master.

In their filing to the 11th Circuit asking the court to stay Cannon's order keeping the subset of sensitive record off-limits to investigators, federal prosecutors argued the decision "hamstrings" its criminal probe and "irreparably harms the government by enjoining critical steps of an ongoing criminal investigation and needlessly compelling disclosure of highly sensitive records," including to Trump's lawyers.

By blocking the review and use of the records for investigative purposes, the ruling "impedes the government's efforts to protect the nation's security," Justice Department lawyers wrote in their 29-page filing.

In addition to keeping in place her order stopping federal investigators from using the sensitive documents, Cannon, appointed to the federal bench by Trump, also named Judge Raymond Dearie to serve as the special master. Dearie is tasked with reviewing the roughly 11,000 documents recovered by the FBI from a storage room and Trump's office at Mar-a-Lago for personal items and records, as well as material that may be potentially subject to attorney-client or executive privileges. 

Dearie, a longtime judge on the federal district court in Brooklyn, met with Justice Department lawyers and Trump's legal team Tuesday afternoon. He'd asked the parties to submit proposed agenda items in advance. 

In a letter on Monday, federal prosecutors suggested the conference focus on the "precise mechanics" of how the documents should be reviewed, aspects of the order appointing Dearie as special master and future progress reviews.

In a separate letter to Dearie, Trump's lawyers pushed back on the Oct. 7 deadline proposed by Dearie for the two sides to finish sifting through and labeling the documents seized from Mar-a-Lago. They also objected to a request from Dearie that Trump disclose information regarding any potential declassification of the sensitive materials taken from his South Florida residence, arguing that doing so would force Trump to "fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the district court's order."