Trump asks judge to continue blocking F.B.I. From working with seized classified files

 

Former President Donald J. Trump's lawyer asked a federal judge on Monday to deny the Justice Department's request to immediately reopen a key part of the criminal investigation into his hoarding of sensitive government documents at his Florida residence.

The former president's legal team renewed its request for a sweeping independent review of the records seized from Mr. Trump, arguing that documents designated classified should not remain with the F.B.I. and prosecutors. They asked Judge Aileen M. Cannon to uphold her order barring agents from using any material taken from his estate until they are all reviewed by an outside arbitrator, known as a special master.

The 21-page filing was an aggressive rebuke to a broader Justice Department investigation into whether Mr. Trump or his aides illegally kept national security secrets at his Mar-a-Lago estate or thwarted repeated government attempts to obtain materials. It downplayed the criminal investigation as a "storage dispute" and suggested officials may have leaked information about the contents of the files.

"This investigation of the 45th President of the United States is both unprecedented and misleading," the filing said. "At the heart of the out-of-control document storage dispute, the government is wrongfully seeking to criminalize the 45th president's possession of his own presidential and personal records."

The filing was the latest salvo in what threatens to become a protracted legal battle over the special master, even as the Justice Department signaled late Monday that it may accept at least one candidate Mr. Trump's lawyers have suggested for the post. Part of the dispute centers on whether the special magisterial review should extend to blocking investigators from using any records potentially protected by an executive order.

The filing, which came as Mr. Trump returned to the Washington area, highlighted how he has so far succeeded in using what amounts to a procedural sidestep to stall the criminal investigation, even after his representatives falsely said in June that his office returned any classified documents in his possession.

Prosecutors last week asked Judge Cannon to allow investigators to resume work on about 100 documents designated classified, which made up a small portion of the nearly 13,000 items the F.B.I.
They said the ban on the use of the materials prevents the intelligence community from reviewing any risk posed by the insecure retention of national security secrets and reviewing the classification of the materials, arguing that the effort is inextricably linked to criminal investigations.

More on the Trump Documents Inquiry
But on Monday, Mr. Trump's lawyers rejected the government's claims, saying the claims appeared to be "exaggerated" and that only a "short pause" would be needed to complete the special master's review. (On Friday, Mr. Trump's lawyers said they expected the review to take three months.)

Donald J. Trump's request that an independent arbitrator, known as a special master, review documents that the F.B.I. captured from Mar-a-Lago. The verdict surprised experts and could slow down the investigation.

Justice Department response: The Justice Department asked the judge to delay enactment of key parts of her order, including a temporary ban on access to classified documents seized from Mr. Trump's home. Mr. Trump's lawyers asked the judge to deny the agency's request.

Proposed nominee: The Justice Department said it is open to accepting one of Mr. Trump's picks for the special master positionHer decision in the case is her first major decision in a short judicial career.
"This convenient and belated government claim to allege the crime team's access to these documents arises only because the F.B.I. admits that the intelligence community's review is really just another facet of its criminal investigation," they argued.

it could take other steps related to the documents — including the use of criminal investigative tools such as subpoenas — if their purpose was to assist the intelligence community in its risk assessment.

This concession did not address the possibility that such conduct could also support a criminal investigation.
The dispute over the special commander has already delayed a briefing on the seized materials for top congressional officials and leaders of congressional intelligence committees, a person familiar with the matter said.

The clash stems from an order issued earlier last week by Judge Cannon, a Trump appointee, in which she said she would appoint a special commander with broad powers to review all seized materials. In her order, the judge said they could be searched not only for any documents potentially covered by the attorney-client privilege, a fairly common measure but also for the executive branch privilege, which would be unprecedented in a federal criminal investigation.

As part of his order, Judge Cannon told the Justice Department it would have to wait until the special master's work was done before it could use any of the records in the investigation. But the judge conceded that the intelligence community could use the materials to independently assess how the stockpiling of the former president's records might affect national security.

On Thursday, the Justice Department hit back, telling Judge Cannon in another filing that intelligence assessments and criminal investigations are "inextricably linked." Prosecutors asked her to lift a ban on the use of seized materials and asked that she limit the scope of the special master's review to unclassified documents, excluding about 100 seized files bearing classification labels.

In addition, prosecutors informed her that if she doesn't comply by Thursday with their request to suspend the part of her ruling that prevents investigators from working with documents marked classified, they will ask the 11th Circuit Court of Appeals in Atlanta to step in and block it.

The Justice Department and Mr. Trump's lawyers have also been at loggerheads over who should be named special master, with each side putting forward two candidates for the post.