DOJ will appeal judge order to appoint special master to review records seized by FBI from Trump's Mar-a-Lago

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Judge grants Trump's special master request to review Mar-a-Lago documents

Fox News correspondent David Spunt explains how the special master appointment will slow down the Justice Department's investigation on 'Outnumbered.'

The Justice Department on Thursday informed the court that it will appeal the federal judge's order for the appointment of a special master to review the records seized by the FBI during its unprecedented raid of former President Trump’s Mar-a-Lago home, if the court does not grant the government a stay in the case.

The Justice Department filed a "notice of appeal" to U.S. District Judge from the Southern District of Florida Judge Aileen M. Cannon on Thursday. 

The filing specifically states that the government "respectfully moves for a partial stay" pending its appeal of Cannon's ruling Monday, which ordered that a special master be appointed to "review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property." 

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"The government respectfully requests that the Court rule on this motion promptly," the DOJ filing states. "If the Court does not grant a stay by Thursday, September 15, the government intends to seek relief from the Eleventh Circuit."

Ex-CIA director and an MSNBC contributor suggest the execution of Former President Donald Trump after Washington Post claim that the FBI raid sought out "nuclear" documents.  (James Devaney/GC Images)

"A stay as to that limited set of records is warranted for three reasons," the DOJ wrote. "First, the government is likely to succeed in its appeal of the Order as it applies to classified records," the DOJ states, adding that Trump "does not and could not assert that he owns or has any possessory interest in classified records; that he has any right to have those government records returned to him; or that he can advance any plausible claims of attorney-client privilege as to such records that would bar the government from reviewing or using them."

The DOJ cited Supreme Court precedent, saying it "makes clear that any assertion of privilege" that Trump may attempt to make over classified records "would be overcome by the government’s ‘demonstrated, specific need’ for that evidence."

Cannon's order Monday authorized 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," the order states.

"Second, the government and the public would suffer irreparable harm absent a stay," the DOJ wrote.

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The DOJ said the courts order would "irreparably harm the government and the public by unnecessarily requiring the government to share highly classified materials with a special master."

The DOJ added that there is "no valid purpose to be served by a special master’s review of classified materials, compelled disclosure of those materials to a special master is itself an irreparable harm."

"Third, the partial stay sought here would impose no cognizable harm on Plaintiff," the DOJ writes. 

"It would not disturb the special master’s review of any other records, including any personal materials or records potentially subject to attorney-client privilege.""The government has already reviewed the classified records, and the Court’s order contemplates that it may continue to do so for certain national security purposes," the DOJ continued. 

"A stay would simply allow the government to continue to review and use the same records—which, again, indisputably belong to the government, not Plaintiff—in its ongoing criminal investigation as well."

Fox News first reported last month that FBI agents seized boxes containing records covered by attorney-client privilege and potentially executive privilege during the raid.

Ex-CIA director and an MSNBC contributor suggest the execution of Former President Donald Trump after Washington Post claim that the FBI raid sought out "nuclear" documents. 

Attorney-client privilege refers to a legal privilege that keeps communications between an attorney and their client confidential. It is unclear, at this point, if the records include communications between the former president and his private attorneys, White House counsel during the Trump administration or a combination. 

A Department of Justice "taint" or "filter" team had been reviewing those documents, but Cannon's Monday order temporarily halts that government review.

"Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures, the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order."

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The order, though, "shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence ("ODNI") as described in the Government’s Notice of Receipt of Preliminary Order."

But, as part of the filing, FBI assistant director for the counterintelligence division Alan Kohler Jr. provided a declaration supporting the DOJ’s motion for a stay, saying that the "Intelligence Community’s classification review and national security risk assessment are inextricably linked with the criminal investigation."

Kohler said that DOJ and FBI officials are "ultimately responsible for supervising the criminal investigation and for ensuring that the FBI is coordinating appropriately with the rest of the IC on its classification review and assessment." 

Kohler added that the FBI is the "only IC element with a full suite of authorities and tools to investigate and recover any improperly retained and stored classified information in the United States."

"Given its broad counterintelligence and law enforcement mandates, the FBI is critical to the whole-of-government effort to address any national security risks at issue in this case," he wrote.

Meanwhile, Cannon also revealed Monday in her order that the FBI seized Trump’s medical records and documents related to his accounting information and taxes during the raid. 

This image contained in a court filing by the Department of Justice on Aug. 30, 2022, and redacted by in part by the FBI, shows a photo of documents seized during the Aug. 8 search by the FBI of former President Donald Trump's Mar-a-Lago estate in Florida. (Department of Justice via AP)

"According to the Privilege Review Team's Report, the seized materials include medical documents, correspondence related to taxes, and accounting information," Cannon wrote. 

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A source familiar told Fox News that the FBI seized 40 years of Trump’s medical records from Mar-a-Lago during the search.

Congressional Democrats have been seeking Trump's tax returns since 2019. Last month, a federal appeals court paved the way for the House Ways and Means Committee to finally obtain Trump’s tax returns from the Internal Revenue Service, under a law that permits the disclosure of an individual's tax returns to the congressional committee.

Trump may seek emergency intervention measures from the Supreme Court in an attempt to temporarily block any release of those tax records to the committee.