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U.S. Asks Judge in Trump Special Master Case to Lift Key Parts of Order

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WASHINGTON — The Justice Department asked a federal judge on Thursday to revisit her decision to temporarily stop prosecutors from getting access to classified documents seized from former President Donald J. Trump’s Florida home, arguing that her ruling was hindering the federal government’s effort to find out whether national security had been compromised.

In a pair of filings in federal court, lawyers for the department announced their intention to appeal key parts of Judge Aileen M. Cannon’s ruling. They said they’d ask an appeals court to dam those sections of her order if she doesn’t comply with accomplish that herself by next Thursday.

Judge Cannon’s order, issued on Monday, has prevented the department from using the documents in its investigation of Mr. Trump, including some marked as highly classified, that the F.B.I. took during a court-authorized search on Aug. 8.

Within the ruling, she said she planned to appoint an independent arbiter, often called a special master, to sift through the greater than 11,000 documents and 1,800 other items found at Mr. Trump’s property, Mar-a-Lago. The special master would even be authorized to discover and put aside any materials potentially protected by attorney-client or executive privilege — or that were of a clearly personal nature.

Prosecutors asked Judge Cannon to permit investigators to proceed to make use of “classified records — a discrete set of just over 100 documents” and to withhold them from the special master.

The department, in forceful and foreboding language, argued that determining the national security implications of Mr. Trump’s retention of the documents was so intertwined with its criminal investigation that carrying out a separate risk assessment was inconceivable under the conditions imposed by the court.

Justice Department lawyers complained that the judge’s order was impeding efforts to find out whether there may yet be “additional classified records that will not be being properly stored” and noted that the search had recovered empty folders marked as classified whose contents “can have been lost or compromised.”

In an order on Thursday evening, Judge Cannon directed Mr. Trump’s lawyers to reply to the federal government’s filing by Monday.

In an affidavit accompanying the filing, Alan E. Kohler Jr., the assistant director of the F.B.I.’s counterintelligence division, wrote that the danger assessment, conducted by the Office of the Director of National Intelligence, was “inextricably linked with the criminal investigation.”

Department lawyers wrote that “uncertainty regarding the bounds of the court’s order and its implications for the activities of the F.B.I. has caused the intelligence community, in consultation with D.O.J., to pause temporarily this critically vital work.”

The federal government and the general public, the department added, “are irreparably injured when a criminal investigation of matters involving risks to national security” is frozen or delayed.

The department didn’t contest appointing a special master to sift through documents and images not marked as classified. Nor did it challenge Judge Cannon’s order stopping investigators from working with those files until they were cleared by the special master, even though it said it disagreed with that a part of her decision, too.

As an alternative, prosecutors asked Judge Cannon to grant them immediate access only to the classified material, arguing that her ruling had been based on concerns about Mr. Trump’s personal materials — including medical and financial records — that were swept up within the search.

“The classification markings establish on the face of the documents that they’re government records, not plaintiff’s personal records,” they said.

Prosecutors added that Mr. Trump has no right to have classified government documents returned to him and there isn’t any plausible claim that any are subject to attorney-client privilege.

And while they conceded that some classified documents might arguably be subject to executive privilege, they argued that criminal investigators could be entitled to have access to them anyway. Under a 1974 ruling, the Supreme Court allowed the Watergate prosecutor to acquire President Richard M. Nixon’s Oval Office tapes though he had tried to invoke the privilege.

Mr. Trump has claimed that he had declassified every little thing he faraway from the Oval Office to his residence. But his lawyers haven’t made that very same assertion within the courtroom, where there are skilled consequences for lying.

As an alternative, they’ve agreed that it might be appropriate for the special master to have a top secret security clearance. If Judge Cannon ultimately decides to limit the special master to reviewing those documents not marked as classified, the arbiter wouldn’t need a clearance, expanding the pool of potential candidates.

Not one of the three criminal laws cited as the idea of the search, including the unauthorized retention of national security secrets and obstruction of justice, require the documents to have been deemed classified.

In her ruling, Judge Cannon left open the likelihood that Mr. Trump’s legal team could contest the seizure of some materials based on an assertion of executive privilege.

However the department noted in its filing that Mr. Trump “himself declined to claim any claim of executive privilege over the classified records” found at Mar-a-Lago after a grand jury issued a subpoena for them in May.

The federal government remains to be required to confer with Mr. Trump’s lawyers to provide an inventory of potential arbiters to the court by Friday, unless the judge extends the deadline she imposed this week. A spokesman for the department said it intended to accomplish that, provided it could reach an agreement with Mr. Trump’s team.

The filing said the federal government would soon make available to Mr. Trump’s team “copies of all unclassified documents recovered through the search — each personal records and government records.” It added that it might return Mr. Trump’s personal items that weren’t mixed with classified records.

Mr. Trump’s legal team didn’t immediately comment on the filing.

But on his Truth Social platform, Mr. Trump accused the department of planting evidence and complained about its decision to appeal the ruling. He called Judge Cannon, whom he appointed in November 2020, “a superb and courageous judge whose words of wisdom rang true throughout our nation.”

Under Judge Cannon’s ruling, prosecutors are barred from using the trove of documents they retrieved within the search of Mar-a-Lago for further investigation pending the completion of a review by the arbiter.

Her order allowed the intelligence agencies to proceed assessing the potential risks to national security brought on by the insecure storage of highly classified documents at Mr. Trump’s private club and residence.

Thursday’s filing was an try to place the onus back on Judge Cannon.

The submission of the filing, including the declaration that Judge Cannon’s order was creating national security problems, also added to the factual record the federal government could put before the appeals court.

Notably, the federal government didn’t file a motion to reconsider, a proper request for the judge to reverse her ruling. Such motions are notoriously hard to win, partly because they essentially ask judges to acknowledge they were fallacious in making an earlier decision.

The appointment of a special master is more prone to delay than derail the investigation into Mr. Trump’s handling of highly classified documents. Yet the legal and constitutional stakes are high.

Attorney General Merrick B. Garland and other senior department officials have been wrestling with the dilemma of whether to let the order stand to hurry up the method, or to appeal a ruling they imagine is fallacious concerning the law and must be reversed — at the price of doubtless longer delays.

Advisers to Mr. Trump are already proceeding as if the appointment of the special master were an achieved fact and have begun considering several potential candidates who could be acceptable to the court, including former judges, in line with an individual acquainted with the situation.

In a separate motion on Thursday, the Justice Department obtained permission from a federal judge in Washington to reveal more details about subpoenas that were issued this summer to the Trump Organization for documents marked as classified and surveillance camera footage at Mar-a-Lago. Mr. Trump’s legal team has already acknowledged the existence of the subpoenas in litigation.

On the time, prosecutors were attempting to use a grand jury subpoena to retrieve the remaining documents marked as classified at Mar-a-Lago. They were also looking for to find out whether any materials had been faraway from a storage closet on the property and wanted the footage to see who had access to the room.

Those subpoenas were mentioned within the affidavit used to acquire the warrant to go looking Mar-a-Lago. The Justice Department is looking for to release parts of that affidavit that had been redacted in an earlier disclosure, but it surely first needs permission from the magistrate judge in Florida who signed the warrant.

Maggie Haberman contributed reporting.

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