DOJ files to appeal special master ruling on Trump papers

The Justice Department on Thursday asked a federal judge in Florida to tweak a ruling that has limited the government’s criminal probe into secret materials hauled from former President Donald Trump’s Mar-a-Lago estate, threatening to take the case to an appeals court if the judge refuses.

In a 21-page court filing, the Justice Department said it wants Judge Aileen Cannon to issue a partial stay of her ruling, temporarily voiding a portion that bars prosecutors from examining seized confidential items for “criminal investigative purposes.”

Cannon’s decision, issued Monday, ordered the creation of an independent arbiter to review the documents. But the ruling also went further, putting up barriers to the criminal probe that the Justice Department wrote would cause “immediate and serious harms to the government and the public.”

Trump requested the document review, set to be conducted by a court-appointed special master. Cannon, appointed to the federal bench by Trump in 2020, agreed, citing the potential “reputational harm” he would incur if indicted, and the “unprecedented nature of the search.”

The ruling appeared to place Trump on a pedestal as a former president. And it created a dilemma for the Justice Department, which had to weigh the dilatory effects of an appeal against a desire to scrub a ruling that legal experts saw as flimsy and dangerous.

The Justice Department appeared to strike an initial middle ground with its request for a stay in the case, which involves more than 10,000 items seized Aug. 8 by FBI agents at Trump’s home in Palm Beach, Fla.

“Although the government respectfully disagrees with the Court’s injunction as to a much broader set of seized materials already in the possession of the investigative team, it is not at this time seeking a stay as to the vast majority of those materials,” said the motion.

Instead, prosecutors wrote that it seeks a stay of measures that prevent the use of classified documents for the purposes of its criminal probe, along with measures that require those documents be disclosed to the special master.

If the Justice Department does not receive the stay by next Thursday, the filing said, it will take its appeal to the Court of Appeals for the 11th Circuit in Atlanta. Six of the 11 judges on the court are, like Cannon, appointees of Trump.

Still, the prosecutors expressed confidence in their chances on appeal, writing that “Supreme Court precedent makes clear that any possible assertion of privilege” that Trump might make in relation to the documents would wilt in the face of the government’s need for evidence.

The U.S. Attorney’s Office also filed a notice of appeal.

In a post on his Truth Social platform, Trump ridiculed the Justice Department, saying that federal officials were preparing to appeal a ruling from a “brilliant and courageous Judge whose words of wisdom rang true throughout our Nation.”

At Mar-a-Lago, FBI agents unearthed 18 top secret documents, dozens more secret documents and 48 empty folders marked as “classified,” according to an inventory unsealed in the U.S. District Court for the Southern District of Florida.

Cannon’s Monday order allowed the government to continue to use the materials for intelligence classification and national security purposes. The Washington Post reported Tuesday that a document describing another nation’s nuclear defenses was unearthed at Trump’s estate.

Cannon wrote that the unusual circumstances posed by the search demanded a “brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards.”

But legal analysts suggested she offered Trump an inappropriate level of deference.

Laurence Tribe, a constitutional law professor at Harvard, said Monday that Cannon’s order was “unjustified and ill-considered,” adding that it ignored a wealth of precedent pointing against judicial interference in ongoing criminal probes.