US Justice Department to appeal against special master ruling in Donald Trump probe

The US Justice Department on Thursday (Sept 8) asked a federal judge to let it continue reviewing records seized by the FBI from former president Donald Trump's Florida home while it investigates whether classified documents were illegally removed from the White House.

Prosecutors in a court filing asked US District Judge Aileen Cannon not to allow an independent arbiter, called a "special master", to review classified materials found in Trump's Mar-a-Lago estate in Palm Beach on August 8 during a court-approved search.

They also for the first time suggested there could be more classified records that were removed from the Trump White House that they have not yet located.

The prosecutors said that if the judge does not rule on their request by September 15, they would file an appeal to the Atlanta-based 11th US Circuit Court of Appeals, where six of the 11 active judges were appointed by Trump.

"Without a stay, the government and the public will also suffer irreparable harm from the undue delay to the criminal investigation," prosecutors wrote.

"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," they added.

The department's move came after Cannon, a Trump appointee, on Monday ordered federal prosecutors to pause reviewing the more than 11,000 records they recovered from Trump's Mar-a-Lago estate in Palm Beach while a special master is appointed to review the material.

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The Justice Department said it still intends to provide the court on Friday with a list of possible special master candidates, as Cannon has requested, and will also give Trump access to the thousands of unclassified records that the FBI seized from his home.

But it drew a line in the sand when it came to the around 100 pages marked as classified, saying there is harm that would be done if those are shared.

"This motion is limited to the order's directives with respect to the seized classified records because those aspects of the order will cause the most immediate and serious harms to the government and the public," the department said in a court filing.

Trump is under investigation for retaining government records, some of which were marked as highly classified, at his home after leaving office in January 2021.

The Justice Department is also investigating Trump for possible obstruction of justice after revealing in prior legal filings it has evidence that records may have been removed or concealed from the FBI when it sent agents to Trump's home in June to try to recover all classified documents.

Cannon granted Trump's request for a special master, an independent third party who is sometimes assigned in sensitive cases to review materials that could be covered by attorney-client privilege.

The judge said the person will be tasked with reviewing documents that are not just covered by attorney-client privilege, but any records possibly covered by executive privilege as well. Executive privilege is a legal doctrine that can shield some presidential records from disclosure.

The Justice Department has challenged the logic of using a special master to review records covered by executive privilege in this case because Trump does not own the records and is no longer president.

"No potential assertion of executive privilege could justify restricting the executive branch's review and use of the classified records at issue here," they wrote.