DOJ asks appeals court to throw out appointment of Trump special master

The Department of Justice on Friday argued that an appeals court should overturn the ruling appointing a special master to review the more than 10,000 documents seized by the FBI during an August search of former President Trump’s home.

In a filing before the 11th Circuit, the Department of Justice (DOJ) picked apart a lower court’s ruling in favor of Trump as well as the former president’s argument that he should be afforded a third party to review the evidence collected at Mar-a-Lago.

“The uncontested record demonstrates that the search was conducted in full accordance with a judicially authorized warrant, and there has been no violation of Plaintiff’s rights — let alone a ‘callous disregard’ for them. Plaintiff has failed to meet his burden in establishing any need for the seized records — indeed, a substantial number of them are not even his—or in establishing any irreparable injury in their absence,” the DOJ wrote in its brief.

The filing comes after the Department of Justice won an initial battle before the 11th Circuit, which agreed to siphon off some 100 classified records from the special master review in an opinion that also suggested Florida-based federal district court Judge Aileen Cannon erred by appointing one in the first place.

The department said Trump failed to demonstrate and Cannon failed to weigh fully each aspect of the legal tests necessary before a court can impose limits on a federal investigation. That includes whether officials displayed a “callous disregard” for someone’s rights, and whether they would be “irreparably injured” by failing to get the return of their property — neither of which Trump can justify, the department said.

The brief rehashed many of the arguments the DOJ first relayed to the district court — that Trump cannot use executive privilege to block the functions of the current executive and that he has no claim to presidential records as his personal property.

But it also made more forceful claims about why it needs the records, both classified and unclassified, to aid the investigation.

The DOJ detailed how unclassified records, and the way classified records were mixed in with them, is itself evidence.

“The dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House,” the DOJ wrote.

“In short, the unclassified records that were stored collectively with records bearing classification markings may identify who was responsible for the unauthorized retention of these records, the relevant time periods in which records were created or accessed, and who may have accessed or seen them,” the department continued.

The Department of Justice also pointed to Trump’s claims he may have declassified the records, which is not a central issue for any of the crimes weighed by the DOJ, noting that “in his myriad filings, however, Plaintiff has never actually represented—much less offered evidence—that he declassified any of the seized records.”

The government also rehashed why it believes Trump has no claim to any of the records.

“Plaintiff cannot invoke executive privilege to bar the Executive Branch’s review and use of its own records,” the DOJ wrote. 

“Any assertion of executive privilege would similarly be made against ‘the very Executive Branch in whose name the privilege is invoked.’”

The government also dismissed Trump’s claims that some of the records could be considered his personal property under the Presidential Records Act.

“That claim is dubious, 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’ ones,” the DOJ wrote.

“Plaintiff plainly would not be entitled to the return of evidence solely on the ground that the evidence belonged to him when it was seized. If that were the case, evidence rooms nationwide would soon be emptied.”

Updated at 6:08 p.m.