The Department of Justice filed its response to Donald Trump’s petition for a special master to review materials seized by federal officials from the former president’s Mar-a-Lago resort in Florida.
The filing appeared on the docket Tuesday night just before the midnight deadline set by Judge Aileen Cannon of the Southern District of Florida after approving the agency’s request to file up to 40 pages over the 20-page limit to “adequately address the legal and factual issues raised by” Trump’s team. The document was 36 pages long, and there were attachments, including a photo.
“Plaintiff’s motion to appoint a special master, enjoin further review of seized materials, and require the return of seized items fails for multiple, independent reasons. As an initial matter, the former President lacks standing to seek judicial relief or oversight as to Presidential records because those records do not belong to him,” prosecutors argued in the late Tuesday evening filing. “The Presidential Records Act makes clear that ‘the United States’ has ‘complete ownership, possession, and control’ of them. Furthermore, this Court lacks jurisdiction to adjudicate Plaintiff’s Fourth Amendment challenges to the validity of the search warrant and his arguments for returning or suppressing the materials seized.”
Cannon, a Trump appointee, has already signaled her “preliminary intent” to side with Trump in the special master request and scheduled a hearing on the special master request for Thursday. The Trump team will be able to file a response before then on Wednesday.
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The Justice Department argued that Trump “has shown no basis for the Court to grant injunctive relief” and “is not likely to succeed on the merits; he will suffer no injury absent an injunction — let alone an irreparable injury; and the harms to the government and the public would far outweigh any benefit to” him.
Prosecutors contended that the “appointment of a special master is unnecessary and would significantly harm important governmental interests, including national security interests.”
“The government’s filter team has already completed its work of segregating any seized materials that are potentially subject to attorney-client privilege, and the government’s investigative team has already reviewed all of the remaining materials, including any that are potentially subject to claims of executive privilege,” the DOJ filing also said.
Prosecutors also claimed that the “appointment of a special master would impede the government’s ongoing criminal investigation and — if the special master were tasked with reviewing classified documents — would impede the Intelligence Community from conducting its ongoing review of the national security risk that improper storage of these highly sensitive materials may have caused and from identifying measures to rectify or mitigate any damage that improper storage caused.”
They added that it was the DOJ’s position that “this case does not involve any of the types of circumstances that have warranted appointment of a special master to review materials potentially subject to attorney-client privilege.”
Included as an attachment was what the Justice Department said was a “redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the ’45 office.'”
Trump lawyer Christina Bobb then signed a document asserting that all classified material had been returned to the government, the New York Times reported. Another attachment from DOJ appeared to show that certification document, dated June 2, although the name of the signer is redacted.
Prosecutors also discussed Trump’s passports — including two official passports, one of which was expired, and one personal passport that was expired — were found in a drawer and taken by federal officials before being returned to the former president. “The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information; nonetheless, the government decided to return those passports in its discretion,” the Justice Department said.
Trump’s legal team argues that their client’s constitutional rights were violated and there may have been privileged documents among those taken by federal officials, and the former president is pursuing the appointment of a special master to review independently the evidence that the FBI seized from his Mar-a-Lago home.
Last week, lawyers for Trump filed a motion requesting the appointment of a special master to assess the records, arguing that the raid of his Palm Beach golf club and winter residence was a “shockingly aggressive move.” The filing came two weeks after Trump was raided by the bureau, and a judge indicated this weekend that she was leaning toward granting Trump’s request.
“The documents seized at Mar-a-Lago on Aug. 8, 2022, were seized from President Trump and were created during his term as president. Accordingly, the documents are presumptively privileged until proven otherwise,” Trump’s attorneys argued last week. “Only an evaluation by a neutral reviewer, a special master, can secure the sanctity of these privileged materials.”
The Justice Department filing on Tuesday included a lengthy justification of its investigation.
“Throughout 2021, the United States National Archives and Records Administration had ongoing communications with representatives of former President Trump in which it sought the transfer of what it perceived were missing records from his Administration,” the Justice Department said. “These communications ultimately resulted in the provision of fifteen boxes from former President Trump to NARA in January 2022.”
Prosecutors claimed that “when producing the Fifteen Boxes, the former President never asserted executive privilege over any of the documents nor claimed that any of the documents in the boxes containing classification markings had been declassified.”
The National Archives referral to the Justice Department “was made on two bases: evidence that classified records had been stored at the Premises until mid January 2022, and evidence that certain pages of Presidential records had been torn up,” according to the Justice Department.
In May, Trump’s lawyers said their letter to the National Archives should be considered “a protective assertion of executive privilege made by counsel for the former President” — but the National Archives rejected this and allowed the FBI to access the records.
The Justice Department said that a preliminary review by the FBI revealed “184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET.” The FBI then allegedly developed evidence that “dozens of additional boxes remained at the Premises that were also likely to contain classified information.”
DOJ then said that on June 3, “three FBI agents and a DOJ attorney” arrived at Mar-a-Lago to receive more records, and that “when producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege.”
An FBI review of those records allegedly found “38 unique documents bearing classification markings, including 5 documents marked as CONFIDENTIAL, 16 documents marked as SECRET, and 17 documents marked as TOP SECRET.”
DOJ argued that it “also developed evidence that government records were likely concealed and removed” from a Mar-a-Lago storage room “and that efforts were likely taken to obstruct the government’s investigation” and so “against that backdrop” the FBI sought and received the Aug. 5 warrant for the Aug. 8 raid.
The Justice Department said the FBI raid of Trump’s Florida home found “thirteen boxes or containers contained documents with classification markings, and in all, over one hundred unique documents with classification markings — that is, more than twice the amount produced on June 3, 2022, in response to the grand jury subpoena — were seized.”
A special master, being sought by Trump, is typically a third-party attorney appointed by a judge to conduct independent oversight for a specific part of a case or controversy. It remains to be seen what effect a special master could have on the FBI’s review of evidence, though it is possible it could slow it down. The judge would likely need to make a ruling related to the special master’s ability to access and review classified information, if one is appointed.
The Justice Department had already said it is using a “filter team” or a “taint team” to review any privileged information and sift out evidence outside the scope of the warrant, but Trump’s lawyers argued that a “DOJ filter team will not protect President Trump’s rights” and that a special master was needed.
The Justice Department said Monday it has already identified and reviewed a “limited set” of records that “potentially” include “attorney-client privileged information” among the documents seized from Mar-a-Lago.
An unsealed warrant showed the former president is being investigated for possible violations of the Espionage Act and obstruction of justice. An underlying affidavit, which featured many redactions, noted the “government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records.” It added that there is “probable cause to believe that evidence of obstruction will be found.”
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Trump claimed he declassified all the documents stored at Mar-a-Lago and denied any wrongdoing. “The DOJ and FBI are practicing Election Interference at the highest and most dishonest level our Country has ever seen before, both in the Midterms, and the 2024 Presidential Election,” he said on Truth Social on Sunday.
Trump declared that he declassified documents from the Crossfire Hurricane investigation just before he left office, but it’s unclear whether those records are part of the eclectic array of items found at Mar-a-Lago, either during the raid earlier this month or when government officials obtained documents on at least two other prior occasions.
