The Justice Department on Thursday filed a motion to appeal a federal judge's ruling appointing a special master in the FBI investigation that led to government documents being seized from former President Donald Trump's Mar-a-Lago estate.
The department also asked U.S. District Judge Aileen Cannon to put on hold her directive prohibiting it from using the seized records for investigative purposes while it contests her ruling to a federal appeals court.
Law enforcement officials said they would suffer “irreparable harm” if Cannon’s directive remained in place, noting that uncertainty about the boundaries of the judge’s order had led the intelligence community to temporarily halt a damage assessment of the classified records taken from Mar-a-Lago.
“Moreover, the government and the public are irreparably injured when a criminal investigation of matters involving risks to national security is enjoined,” the Justice Department motion stated.
Cannon, whom Trump appointed in 2020, delivered the former president a legal victory days ago by ruling that a special master will be appointed to review documents for both attorney-client and executive privilege. She also temporarily blocked the FBI from using any of the documents taken from Mar-a-Lago in its investigation. Cannon, however, allowed to U.S. intelligence officials to proceed with their review of whether the files posed any threat to national security.
Cannon said her order to appoint a special master was “to ensure at least the appearance of fairness and integrity under the extraordinary circumstances.” The judge added she was concerned Trump might suffer “reputational harm” from an improper search or future indictment based, even in part, on “property that ought to be returned.”
The DOJ wrote in its brief filing that it will appeal Cannon's decision to the U.S. Court of Appeals for the Eleventh Circuit.
Trump wanted a special master appointed because he believes some of the documents seized from his home are protected by attorney-client and executive privilege and should be blocked from federal prosecutors.
Trump’s lawyers, meanwhile, argue the FBI search “involved political calculations aimed at diminishing the leading voice in the Republican Party, President Trump,” suggesting they don’t trust federal officials not involved in the case to sift through the materials themselves.
The government opposed appointing special master. They said that because they said Trump’s lawyers waited more than two weeks after the search to ask for a special master, the DOJ says it’s already conducted such a review, making, in their opinion, a special master unnecessary. In a court filing last week, the department said it used a separate “filter” team to look over the documents and block any privileged information from reaching the case’s primary investigators.
The DOJ said it identified only a “limited set” of seized materials that might be protected by attorney-client privilege. It said it planned to ask the judge who approved the warrant, Bruce Reinhart, to decide whether privilege applied to the documents.
The Justice Department has argued that allowing a special master to conduct an executive privilege review would be “unprecedented,” that the seized documents don’t belong to Trump and that, as a former president, Trump has no legal basis for asserting executive privilege. The DOJ also argued that a special master would impede the FBI investigation, which it claims is urgent and time-sensitive.
Cannon said in her order she was “not convinced” of the government’s claim that executive privilege did not apply to the case, adding that the Supreme Court had never settled the question of whether a former president could assert executive privilege against a current one. She said it made sense to set aside potentially privileged documents while any legal fight played out.
“Even if any assertion of executive privilege by plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former president’s ability to raise the privilege as an initial matter,” Cannon wrote.
The judge also rejected the DOJ’s argument that the records belong to the government.
Cannon also said the Justice Department filter team’s review twice missed materials that should have been identified as privileged, but she did not provide specifics.
The judge is facing sharp criticism following her decision this week to grant the request, with some saying that Cannon gave undue deference to the former president and unnecessarily put on hold certain investigative work by the Justice Department. They also say she has slowed the momentum of the federal investigation into possible Espionage Act violations.
On the other hand, the move was cheered by Trump supporters seeking a check on the government’s probe.
Cannon is the least senior federal judge for the Southern District of Florida, where five of the 16 active judges were appointed by Trump. According to court rules, cases like the special master request are “assigned on a blind rotation basis ... to a judge assigned to hear cases in the division to which the case has been assigned.”
During her roughly seven years as an assistant U.S. attorney, Cannon worked mainly out of the U.S. attorney’s office in Fort Pierce, Florida, which is part of the same federal district as Miami but about 130 miles to the north. The cases there generally do not get the same kind of attention as those in the more densely populated, media-heavy areas around Miami.
Cannon’s opinion in this case, and her musings about the possibility of “reputational harm” caused to Trump in the event of an indictment, have focused fresh attention on her judicial background.
Cannon’s initial response to the special master request, in which she asked the Trump team for more clarity about what exactly they wanted her to do and why they thought she might have jurisdiction, suggested some skepticism. But days later, she followed up with a new order in which she said it was her “preliminary intent” to appoint a special master but would give the Justice Department an opportunity first to argue against it.
Since 2005, Cannon has been a member of the Federalist Society, a conservative legal organization that has championed judges appointed by Trump, including Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.