DOJ will appeal judge's decision to grant Trump's special master request to review seized docs

The Department of Justice on Thursday moved to appeal a federal judge's ruling in the dispute over documents seized from Donald Trump's Mar-a-Lago estate, where the government claims highly classified records were being improperly held.

Earlier this week, U.S. District Judge Aileen Cannon granted Trump's request for a special master to review what was taken, including for items that might be covered by executive privilege, even though Trump is no longer the president and has never asserted privilege over any specific records.

The ruling, which enjoined the government from further use of the seized documents as part of its criminal investigation, was widely criticized by legal experts on both sides -- including Trump’s former Attorney General William Barr.

"The Court hereby authorizes 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," Cannon wrote.

The DOJ's appeal will go before the 11th Circuit.

Federal prosecutors also requested Thursday for Cannon to stay the portion of her ruling enjoining the government from further review of the documents bearing classification markings taken during the FBI search of Mar-a-Lago. Cannon had required law enforcement to disclose those materials to the special master.

The DOJ said in Thursday's court papers that if Cannon doesn't grant a stay by Sept. 15, they will "intend to seek relief from the Eleventh Circuit."

Trump "does not and could not assert that he owns or has any possessory interest in classified records" prosecutors wrote in a 21-page motion.

Cannon gave Trump's team until Monday morning to respond to the request for a stay.

The DOJ is not seeking a stay on the handover of non-classified documents to an appointed special master but said that if Cannon doesn't grant their stay it "will cause the most immediate and serious harms to the government and the public."

Cannon noted in her previous order that the appointment of an independent third party would not impede the ongoing classification review and national security assessments being conducted by the intelligence community on what was retrieved from Trump's home last month.

The judge had given DOJ and Trump's team until Friday to confer and submit a joint list of proposed special master candidates and a proposed order outlining the special master's duties and limitations.

'Irreparable harm'

In Thursday's motion, the DOJ repeatedly sought to undercut Cannon's position in her ruling approving the appointment of a special master -- and cited the risk of "irreparable harm" to national security and the ongoing criminal investigation if she declines to grant their request for a stay.

While they signaled they care relatively little about non-classified records seized from Mar-a-Lago being handed over to a special master, prosecutors argued that the classified records they say were found with Trump are critical to both their ongoing intelligence assessment and the criminal investigation and Trump has absolutely no legitimate legal claim to them.

While Cannon approved the intelligence community (IC) to continue with its separate evaluation of the documents, that "cannot be readily segregated" from the DOJ and FBI criminal investigation and the IC has been forced to temporarily pause its review out of an abundance of caution, prosecutors wrote.

"The application of the injunction to classified records would thus frustrate the government's ability to conduct an effective national security risk ​assessment and classification review and could preclude the government from taking necessary remedial steps in light of that review—risking irreparable harm to our national security and intelligence interests," the DOJ filing states.

They noted that the injunction could prevent the FBI from being able to identify "the existence of any additional classified records that are not being properly stored" past those that were already seized at Mar-a-Lago -- reflecting investigators' concerns that there could be more materials taken by Trump from the White House that they still have yet to recover. (ABC News previously reported federal law enforcement has some worry for the potential that classified records could potentially be somewhere other than Mar-a-Lago. Trump has denied any wrongdoing.)

"Among other things, the classified records are the very subject of the government's ongoing investigation," the DOJ filing states.

The department said a partial stay would not harm Trump as it wouldn't disturb the special master's review of any other records, including those subject to attorney-client privilege, as the government has already been able to review the classified records for a month -- "which, again, indisputably belong to the government, not [Trump]."

They said that being able to use the documents that were marked classified is an essential element of their ongoing investigation, specifically with respect to the two potential crimes of unauthorized retention of national defense information -- "the classified records are not merely relevant evidence; they are the very objects of the relevant criminal statute" -- and obstruction: "Again, the seized classified records at issue here—each of which the subpoena plainly encompassed—are central to that investigation."

Prosecutors wrote that if Trump believed he ever had a valid assertion of executive privilege over the documents, he had more than enough time to make such assertions including after the DOJ issued its grand jury subpoena in May.

"Instead, on June 3, 2022, Plaintiff's counsel produced a set of classified records to the government, and Plaintiff's custodian certified that '[a]ny and all responsive documents' had been produced after a 'diligent search,'" the filing states. "Plaintiff cannot now maintain—following the government's seizure of additional classified records that Plaintiff failed to produce—that classified records obtained in the search, which were responsive to the grand jury subpoena, are shielded from the government's review by executive privilege."

In a footnote in the latest filing, DOJ officials wrote that they don't interpret Cannon's order as barring their department, the FBI or the Office of the Director of National Intelligence from briefing congressional leaders with intelligence oversight responsibilities regarding the records uncovered -- suggesting they may seek to brief committee members at some point.

The dispute so far

Trump’s team made the request for a special master two weeks after the Aug. 8 search of his home.

The DOJ strongly opposed the request from the start, arguing the appointment would be “unnecessary and significantly harm important governmental interests, including national security interests” by causing a delay in their investigation.

The department said last week that a team tasked with identifying potential attorney-client privileged materials that were seized in the search of Mar-a-Lago had already completed its review and was in the process of addressing possible privilege disputes.

The DOJ also argued that Trump had no standing to ask for a special master because the documents “aren’t his” anymore and belong to the federal government.

"He is no longer the president and because he was no longer the president he did not have the right to take those documents,” said DOJ lawyer Jay Bratt as the two sides faced off in court on Sept. 1.

Trump's lawyers, on the other hand, had said the third-party review was needed to deal with potentially privileged materials seized during the search, including both attorney-client and executive privilege.

Christopher Kise, a new addition to Trump’s legal team, cited a "public lack of faith" in the DOJ and "real or perceived lack of transparency” during the court appearance.

At one point, a Trump lawyer compared the former president's refusal to turn over documents to the National Archives to an "overdue library book."

Trump’s team has celebrated Cannon’s ruling, while a swath of legal experts and observers criticized her for going too far.

Barr, Trump’s former attorney general, criticized the decision during an appearance on Fox News: "The opinion, I think, was wrong, and I think the government should appeal it. It's deeply flawed in a number of ways."

ABC News' Alexandra Hutzler contributed to this report.