Trump's legal team urges court to reject DOJ's request for partial stay of special master ruling

The new filing calls the DOJ's investigation "both unprecedented and misguided."

September 20, 2022, 9:27 PM

Former President Donald Trump's legal team is urging the 11th Circuit Court of Appeals to reject the Justice Department's request for a partial stay of a district judge's ruling that has effectively paused the government's investigation into Trump's potential mishandling of classified records after leaving office.

The DOJ had filed a motion Friday with the 11th U.S. Circuit Court of Appeals for a partial stay of U.S. District Judge Aileen Cannon's order requiring a special master to review items with classification markings seized at Trump's Mar-a-Lago estate in Florida last month.

The government has said Trump was improperly keeping highly classified and sensitive materials that he took with him after leaving the White House. He has denied any wrongdoing.

Tuesday's new filing from Trump's attorneys calls the DOJ's investigation into Trump "both unprecedented and misguided," and repeats their claim that it is merely "a document storage dispute that has spiraled out of control." The Justice Department has said that characterization ignores the fact that documents possibly containing some of the nation's highest protected secrets were found inside Trump's private club in apparent defiance of a grand jury subpoena.

"The District Court did not err in temporarily enjoining the Government's review and use of records bearing classification markings for criminal investigative purposes because the merits support that narrowly tailored injunction," Trump's lawyers argue in the new filing.

Cannon's order effectively froze the government's ability to use the contents of the seized records, including classified documents, as part of its criminal investigation.

DOJ officials also said the order has effectively halted a separate assessment by the intelligence community as to whether any classified information in the documents has been compromised or whether other materials may still be missing.

PHOTO: Former U.S. President Donald Trump speaks at the Conservative Political Action Conference in Dallas, Aug. 6, 2022.
Former U.S. President Donald Trump speaks at the Conservative Political Action Conference in Dallas, Aug. 6, 2022.
Brandon Bell/Getty Images

Cannon also rejected the DOJ's request to allow investigators to continue reviewing the government records taken from Mar-a-Lago for its probe. Instead, she ruled those records had to be given to a special master for review to consider claims for return of personal property and assertions of attorney-client or executive privilege.

The special master appointed by Cannon, U.S. District Judge Raymond Dearie, has called for lawyers representing both Trump and the DOJ to appear in his Brooklyn courtroom Tuesday afternoon.

In a filing on Monday evening, Trump's legal team stated it was objecting to a request from Dearie for more information regarding whether Trump ever claimed to have declassified any of the documents at issue while he was president -- noting it could end up serving as one of their defenses if Trump is ever indicted.

While Trump has repeatedly claimed he declassified all documents in his possession, his legal team has never made such an assertion in any of the court proceedings surrounding the search warrant executed at Mar-a-Lago.

The first Trump special master hearing

At Tuesday's hearing in Brooklyn, Dearie appeared skeptical of the Trump legal team’s resistance to put forward any declassification claims.

“If the government gives me evidence these are classified documents, and you don’t advance declassification claims -- which I understand is your prerogative -- then as far as I’m concerned, that’s the end of it,” Dearie said.

“You can’t have your cake and eat it too,” he added.

"If they are on their face classified, without any evidence to the contrary, how is it on the court to conclude anything but?" Dearie asked.

Jim Trusty, an attorney for Trump, said they were looking to take “baby steps” in the process and he repeatedly said he could not evaluate the merits of the government’s classification claims until the defense team had the opportunity to review all 11,000-plus documents.

“We are not in a position to fully discuss a substantive defense until we see the documents,” Trusty said.

PHOTO: FBI photograph of redacted documents and classified cover sheets recovered from a container stored in former U.S. president Donald Trump's Florida estate that was included in a U.S. Department of Justice filing Aug. 30, 2022.
FBI photograph of redacted documents and classified cover sheets recovered from a container stored in former U.S. president Donald Trump's Florida estate that was included in a U.S. Department of Justice filing Aug. 30, 2022.
U.S. Department Of Justice via Reuters

The former president's attorneys arrived to a small group of protesters shouting "indict Trump." Once inside, they took their seats at a table directly facing the jury box -- which today held members of the press.

Dearie said he would put forward a proposed scheduling order after Tuesday’s hearing.

The government said in court that it gave Trump’s team a list of five government-approved vendors to digitize and disseminate the documents to all parties. Dearie gave Trump’s legal team until Friday to select a vendor, and the Justice Department said they could reasonably expect to hand over their documents early next week.

All parties agreed to act expeditiously, but Trusty repeatedly sought to push back on deadlines, including the selection of a government-approved vendor to digitize documents. Dearie initially proposed Wednesday but relented and agreed on Friday.

During the hearing, Trusty slammed the National Archives and Records Administration (NARA) as a “highly politicized” organization and challenged the government’s suggestion that Dearie should consult them during this process. Dearie indicated that he had no plans to contact NARA but said Trusty was “painting with a broad brush” in his criticism of the organization.

Trusty asked the DOJ to expedite clearances for his co-counsel to review the documents. Julie Edelstein, a government attorney, said the documents are “so sensitive” that even some members of the DOJ team have yet to review them, and she said the documents should only be made available on a “need-to-know” basis.

Trusty said he was “astonished” to hear that members of the former president’s legal team may not be need-to-know -- “I believe we have a need-to-know.”

The government indicated that it would “consider other appellate options” if the 11th Circuit denies its requested stay.

Dearie emphasized the need to keep the documents at hand protected -- and emphasized what is potentially at stake. "Let's not belittle the fact that we are dealing with at least potentially legitimately classified information," he said to Trump's team. "The government has a strong obligation to all of us to see that the information doesn't get into the wrong hands."

ABC News' Lucien Bruggeman, Katherine Faulders, Olivia Rubin and John Santucci contributed to this report,

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