(WASHINGTON) — Officials from the Justice Department and lawyers for former President Donald Trump are set to clash in front of an appeals court panel Tuesday over the appointment of a special master that was tasked by a lower district court judge with reviewing thousands of documents seized by the FBI from Mar-a-Lago this summer.
The DOJ is urging the 11th Circuit Court of Appeals to overturn special master Raymond Dearie’s appointment and have the roughly 13,000 documents returned to investigators examining whether Trump unlawfully retained highly sensitive documents involving national defense information after leaving the presidency, and potentially obstructed justice in resisting the government’s efforts to retrieve them.
The appeals court previously granted a request from the DOJ to stay portions of a ruling by U.S. District Judge Aileen Cannon that had blocked the government from using roughly 100 documents with classification markings recovered from Mar-a-Lago in its investigation and demanded they be handed over to special master Dearie.
The Justice Department then moved for an expedited appeal to end Dearie’s review in its entirety, saying its inability to access the non-classified documents seized from Mar-a-Lago was also significantly hampering its ongoing criminal investigation.
It’s the first in-person meeting between top department officials and Trump’s legal team since Attorney General Merrick Garland announced the appointment of special counsel Jack Smith last Friday, which Garland said was warranted in part because of Trump’s announcement he would again run for president in 2024.
Smith has been tasked with overseeing the continuing criminal investigation of classified records seized from Trump’s estate in August as well as the separate probe into efforts by Trump and his allies to overturn his election loss to President Joe Biden.
In a filing Monday afternoon, the Justice Department formally notified the court of Smith’s appointment and stated he had reviewed the filings in the DOJ’s case and that he “approves all of the arguments that have been presented in the briefs and will be discussed at the oral argument.”
Last week, officials said Smith was preparing to make his return to the U.S. from the Netherlands where he was serving as a chief prosecutor of war crimes at the Hague.
In a filing last week, officials from the department accused Trump and his legal team of engaging in “gamesmanship” in their fight to retain the roughly 13,000 documents in Dearie’s possession by asserting that when he ordered the packing of materials in the White House that were then transported to Mar-a-Lago, they were in effect automatically designated as his own “personal” records.
But at the same time, his attorneys said if Dearie rejected that argument for certain documents, they should have the opportunity to claim they are covered by executive privilege and should be shielded from the government.
They argued Trump’s legal team has put forward a “sweeping and baseless theory” to support their claims over the documents under a reading of the Presidential Records Act, saying Trump “appears to be claiming that he can unilaterally ‘deem’ otherwise Presidential records to be personal records by fiat.”
And even if Trump were correct in his claims, the DOJ says, it would amount to a “red herring” regarding their right to access the documents as part of their ongoing criminal investigation.
“Documents commingled or collectively stored with the classified materials located at Plaintiff’s premises were lawfully seized by the FBI in accordance with the terms of the court-authorized search warrant because of their relevance to the government’s ongoing investigation,” top DOJ counterintelligence official Jay Bratt said. “That relevance exists irrespective of whether they were personal papers or government records. In the absence of a valid and substantiated claim of privilege, all such documents must now be made available to the investigative team.”
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