The Department of Justice (DOJ) will appeal a federal judge’s decision to appoint a special master to audit and FBI review of documents seized from former President Donald Trump’s residence at Mar-a-Lago.
The DOJ announced its intent to appeal U.S. District Judge Aileen Cannon’s decision to the Eleventh Circuit Court of Appeals in a filing on Thursday. Minutes after the filing, the DOJ submitted a request for a partial stay of Cannon’s Monday order on the special master, which also barred the FBI from using the materials seized from Mar-a-Lago for further investigative work. Cannon’s restriction on the FBI was to remain in place until a special master could review all the material taken from Trump’s residence.
The request asked Cannon to allow the FBI to continue to work with classified material, which the DOJ said was limited to “a discrete set of just over 100 documents” that “have already been segregated from the other seized records and are being maintained separately.”
The DOJ argued that a partial stay is necessary because “the government and the public would suffer irreparable harm absent a stay.” The FBI’s investigation is inseparable from an ongoing U.S. Intelligence Community review and risk assessment of the Mar-a-Lago documents. The DOJ also said the FBI review into the classified documents would not harm Trump.
The request asked for a ruling from Cannon by September 15 or it would take its request to the Eleventh Circuit where the DOJ said it is “likely to succeed in its appeal of the Order as it applies to classified records.”
Cannon approved Trump’s request for a special master after hearing arguments in court last week between Trump’s legal team and DOJ attorneys. Cannon attributed her decision in part to the unprecedented nature of the FBI’s raid on the residence of a former president.
“Pursuant to the Court’s equitable jurisdiction and inherent supervisory authority, and mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented, Plaintiff’s Motion [ECF No. 1] is GRANTED IN PART,” Cannon wrote in her order. “The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege.”
In addition to conducting a review of documents for materials potentially protected by attorney-client privilege, Cannon’s order also directs the special master to review the Mar-a-Lago records for material potentially protected by executive privilege. The DOJ has argued that Trump no long has the authority to claim executive privilege as that authority rests in the office of the president. President Joe Biden waived executive privilege on the Mar-a-Lago documents earlier this year.