The Justice Department is seeking to overturn a federal judge's ruling that blocked investigators from reviewing a range of highly-sensitive documents seized from former President Donald Trump's Mar-a-Lago estate.
Prosecutors said in a new court filing that U.S. District Court Judge Aileen Cannon's decision to temporarily halt the FBI's ability to probe the ex-president's handling and storage of classified materials would cause "irreparable harm" to efforts by the intelligence community to protect national security interests.
"[I]n order to assess the full scope of potential harms to national security resulting from the improper retention of the classified records, the government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised," Justice Department counterintelligence chief Jay Bratt argued in the filing. "But that inquiry is a core aspect of the FBI's criminal investigation."
Cannon's attempt to enjoin the FBI investigation while permitting a parallel national security review of the seized documents was also, simply, unworkable, Justice Department officials argued.
"[S]uch bifurcation would make little sense even if it were feasible, given that the same senior DOJ and FBI officials are ultimately responsible for supervising the criminal investigation and for ensuring that DOJ and FBI are coordinating appropriately with the [Intelligence Community] on its classification review and assessment," Bratt added.
Underscoring its case for allowing the intelligence and law enforcement components of the probe to work together, DOJ contended that it was urgent the FBI be permitted to help investigate dozens of empty folders found at Mar-a-Lago with classification markings to determine what they once held and whether their contents "may have been lost or compromised."
While Trump has contended that he should be able to assert executive privilege over many or all of the records seized from his Florida home, the Justice Department says those claims clearly fall short when classified information is at issue.
"Even if a former President might in some circumstances be able to assert executive privilege against the Executive Branch's review and use of its own documents, any such assertion would fail as to the classified records at issue here," Bratt wrote.
In its filing, the Justice Department asks Cannon to exclude all documents with classification markings from any special master review while the government appeals her ruling to the Atlanta-based 11th Circuit Court of Appeals.
Prosecutors indicated that if Cannon doesn't act by Sept. 15 to grant the requested stay to allow use of the documents marked as classified, the government plans to ask the appeals court to do so.