The Justice Department argued Friday that an appeals court should overturn the order appointing a special master to review the more than 10,000 documents the FBI seized during a search of former President Trump’s home in August.
In a case before the 11th Circuit, the Department of Justice (DOJ) singled out a lower court ruling in favor of Trump as well as the former president’s argument that he should have a third party review the evidence collected at Mar-a-Lago .
“The undisputed record shows that the search was conducted in full compliance with a judicially authorized warrant, and there has been no violation of Plaintiff’s rights — let alone a “callous disregard” of them. Plaintiff has failed to meet her burden of establishing any need for the seized records — indeed, a significant number of them are not even his — or by demonstrating irreparable harm in their absence,” the DOJ wrote in its brief.
The filing comes after the Justice Department won an initial battle before the 11th Circuit, which agreed to remove about 100 classified records from the special master review in an opinion that also suggested Florida-based federal district court judge Aileen Cannon erred in designate one to begin with.
The department said Trump failed to demonstrate and that Cannon failed to weigh every aspect of the legal tests needed before a court can impose limits on a federal investigation. That includes whether officials showed a “callous disregard” for someone’s rights and whether they would be “irreparably harmed” by failing to get their property back — which Trump cannot justify, the department said.
The brief resumed many of the arguments the DOJ first forwarded to the district court — that Trump cannot use executive privilege to block the functions of the current executive branch and that he has no claim to the president’s records as his personal property.
But it also made more forceful claims about why it needs the records, both classified and unclassified, to help the investigation.
The DOJ detailed how unclassified records, and the way classified records were mixed with them, are themselves evidence.
“The dates on unclassified records can prove very probative in the government’s investigation. For example, if any records accompanied the classified records after plaintiff’s tenure, it could establish that those materials continued to be accessed after plaintiff left the White House, ” wrote the DOJ.
“In short, the unclassified records that were stored together with classified records can identify who was responsible for the unauthorized retention of those records, the relevant time periods in which records were created or accessed, and who may have accessed or seen them,” the ward continued.
The Justice Department also pointed to Trump’s claims that he may have declassified the records, which is not a central issue for any of the crimes the DOJ is weighing, noting that “in his numerous filings, however, Plaintiff has never actually represented — very less offered evidence—that he declassified any of the seized records.”
The government also reiterated why it believes Trump is not entitled to any of the records.
“The complainant cannot invoke executive privilege to preclude the Executive Branch’s review and use of his own records,” the DOJ wrote.
“Any assertion of executive privilege will similarly be made against ‘the very executive branch in whose name the privilege is invoked.'”
The government also rejected Trump’s claims that some of the records could be considered his personal property under the Presidential Records Act.
“This contention is questionable, not least because the entire purpose of the PRA would be defeated if a president could simply designate all of his official records as ‘personal,'” the DOJ wrote.
“The appellant would obviously not be entitled to the return of evidence simply because the evidence belonged to him when it was seized. If that were the case, evidence vaults across the country would soon be emptied.”
Updated at 18.08