Mar-a-Lago: DOJ can resume criminal probe of classified documents, appeals court says

The emergency intervention upends a trial judge’s order over those documents that blocked federal investigators’ work on the documents, and is a strong rebuke of the Trump team’s attempt to suggest without evidence that materials were somehow declassified.

A special master’s review of that subset of about 100 records, which would’ve allowed Trump’s legal team to see them, is now partially stopped. The special master, Judge Raymond Dearie, is able to continue his work reviewing the rest of the material seized from Mar-a-Lago, to make sure records belonging to Trump or that he may be able to claim are confidential aren’t used by investigators.

“It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in ‘exceptionally grave damage to the national security,'” the three-judge panel from the 11th US Circuit Court of Appeals stated. “Ascertaining that necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised.”

Throughout the litigation, Trump’s lawyers have raised vague questions about whether the materials are in fact classified. But they have not straightforwardly asserted in court that the former President declassified them, even as Trump himself has claimed outside of court that he did.

Wednesday night, the appeals court panel called Trump’s legal team out.

“Plaintiff suggests that he may have declassified these documents when he was President,” the court wrote. “But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents.”

READ: Appeals court says DOJ can resume criminal probe of classified documents from Mar-a-Lago

Trump’s lawyers have also sought to put off making any specific disclosures about whether the documents had been declassified while the special master initially reviews the materials.

“The records’ classification markings establish that they are government records and that responsible officials previously determined that their unauthorized disclosure would cause damage — including ‘exceptionally grave damage’ — to the Nation’s security,” the prosecutors had told the 11th Circuit in a Tuesday night filing.

The Justice Department had asked for the 11th Circuit’s intervention in the Mar-a-Lago documents dispute after Trump successfully sued to obtain the appointment of a special master — an independent attorney — to pour through the roughly 11,000 documents the FBI obtained in its search of Trump’s home.

US District Judge Aileen Cannon, the Florida judge who granted Trump’s bid for the review, previously declined a Justice Department request that she pause the parts of her order that applied to the 100 documents identified as classified.

None of the three criminal statutes the FBI cited when it obtained the Mar-a-Lago search warrant hinge on the materials being classified, DOJ argued.

In seeking to restart its criminal investigation into the documents, the Justice Department argued that Cannon’s order was hindering investigators from taking steps to assess and mitigate national security risks posed by how the documents were handled.

Cannon said that a national security assessment of the materials being conducted by the intelligence community could proceed. However, the Justice Department argued that that assessment could not be decoupled from the criminal investigation.

Not Trump’s records

The 11th Circuit resoundingly rejected Trump’s arguments that he may have an interest in classified records that could keep them from federal criminal investigators.

Trump “does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in. Second, we find unpersuasive Plaintiff’s insistence that he would be harmed by a criminal investigation,” they wrote.

“Because of the nature of the classified materials at issue here and based on the record, we have no reason to expect that the United States’ use of these records imposes the risk of disclosure to the United States of Plaintiff’s privileged information,” they wrote.

This story has been updated with additional details.

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