DOJ appeals decision to order special master to review evidence seized in Mar-a-Lago search and says it’s halted intelligence review

By Tierney Sneed

The Justice Department is appealing a court-ordered special master review of the materials seized by the FBI at former President Donald Trump’s Florida home, it said Thursday.

The Justice Department is also asking US District Judge Aileen Cannon, the Trump-appointee who ordered the special master, to partially pause part of her order, originally delivered on Labor Day, with the prosecutors saying the government has halted the intelligence community’s review of classified documents.

The FBI seized more than 100 classified records during the August 8 search of Mar-a-Lago, according to DOJ, but there’s no way to separate the intelligence community’s review and the FBI criminal investigations, the government said in its request for the partial stay with Cannon.

“The application of the injunction to classified records would thus frustrate the government’s ability to conduct an effective national security risk assessment and classification review and could preclude the government from taking necessary remedial steps in light of that review — risking irreparable harm to our national security and intelligence interests,” DOJ wrote.

The Justice Department had vigorously opposed the appointment of a special master, which is a third-party attorney tasked with reviewing evidence and filtering out privileged documents. The department argued to Cannon the independent review wasn’t necessary, given the internal DOJ filter practices that had been used in the search. Prosecutors say it would impede both the criminal investigation into the handling of documents from Trump’s White House and national security risk analysis being conducted by the intelligence community.

In her Monday order granting Trump’s request for the special master, Cannon halted any use of the seized materials for the DOJ’s criminal investigation. She said, however, that the intelligence community’s assessment could continue. The Justice Department on Thursday said Cannon’s order was incompatible with the investigation.

“The injunction against using classified records in the criminal investigation could impede efforts to identify the existence of any additional classified records that are not being properly stored — which itself presents the potential for ongoing risk to national security,” DOJ said Thursday.

Cannon had also ordered that the independent review look for documents potentially covered by executive privilege — in addition to the attorney-client privilege concerns that are usually a special master’s focus.

The move, described as novel by both the Justice Department and outside legal experts, stands to protract the review as the criminal investigation remains hindered by Cannon’s injunction.

Trump filed the lawsuit seeking the special master two weeks after the search warrant was executed on his Mar-a-Lago residence and resort. According to submissions the Justice Department made to the magistrate judge who approved the warrant, the FBI is investigating potential violations of the Espionage Act, criminal mishandling of government documents and obstruction of justice.

Cannon has ordered the Justice Department and Trump’s lawyers to file legal briefs laying out their proposed candidates to serve as special master, along with recommendations for how the review should proceed.

According to the order, the review will include materials covered by executive privilege — a legal gray area that has been perhaps the source of the sharpest contention in the case.

The prosecutors told Cannon that if she did not grant their request to suspend parts of her ruling by September 15, they’d seek the intervention of the 11th US Circuit Court of Appeals.

This story has been updated with additional details.

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