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DOJ to appeal master’s special ruling, arguing classified documents are not Trump’s ‘personal records’

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WASHINGTON — The hundreds of pages of classified government documents seized last month from Donald Trump’s Mar-a-Lago estate are not the former president’s “personal records” and he has no right to possess them, said the Justice Department in a lawsuit. It was announced on Thursday that the government would appeal a judge’s ruling in the case.

The Justice Department will appeal the ruling of U.S. District Court Judge Aileen Cannon for a special captain to review the documents seized during the search of Trump’s Mar-a-Lago home, according to the notice archived Thursday. The Justice Department said it will appeal to the U.S. Court of Appeals for the Eleventh Circuit.

The department also requested a partial suspension of Cannon’s ruling while the appeal is pending, proverb “The government and the public are irreparably wounded when criminal investigations into matters posing a national security risk are imposed.”

Portions of Cannon’s ruling — particularly those prohibiting the government from doing anything with the classified documents it seized — would cause “the most immediate and serious harm to the government and the public.” The government also wrote, in an eyebrow-raising rule, that the ban “could hinder efforts to identify the existence of additional classified records that are not properly stored.”

“The classified documents are owned by the government over which the executive branch has control and in which Plaintiff has no apparent ownership interest,” the Justice Department wrote.

Cannon, a 41-year-old Trump appointee who was confirmed at the end of the Trump administration in Florida’s Southern District, granted Trump’s request for a special master on Monday. Her ruling was widely reported by the legal community, especially given her unprecedented decision to grant special authority not only over documents protected by attorney-client privilege, but also over Trump’s alleged claims of executive privilege.

The Justice Department said there was absolutely no doubt that the classified documents recovered by the FBI from Mar-a-Lago belonged to the US government.

“The classification marks on the face of the documents indicate that they are government documents and not the plaintiff’s personal information,” the government wrote. “The government’s review of these documents does not make any plausible claims about attorneys’ privileges of nondisclosure because such classified documents do not include communication between the plaintiff and his private attorneys and the use of the classified documents at issue here.”

Trump “does not claim and cannot claim that he owns or has a possession interest in classified records; that he has any right to return those government documents to him; or that he makes plausible claims of attorney-client privilege with respect to such records that government from reviewing or using them,” DOJ wrote.

When the FBI issued a search warrant in Mar-a-Lago a month ago, the Justice Department said it had found more than 11,000 pages of government documents that were in the custody of the National Archives under the Presidential Records Act. They also found hundreds of pages of classified documents, despite a Trump attorney stating that the former president no longer had classified documents after handing over 38 classified documents in June in response to a grand jury subpoena. Earlier in the year, Trump handed boxes of documents to the National Archives containing more than 700 pages of classified records.

The administration argued that there was evidence that the Trump team “hidden and removed” additional classified documents stored at Mar-a-Lago before the FBI searched in August.

A federal magistrate judge found probable cause that evidence of crimes would be found at Trump’s Mar-a-Lago estate and signed the FBI’s order to search the property. In fact, the FBI has found more than 100 classified records that Trump was not allowed to have, the DOJ said in a lawsuit last week, along with the more than 11,000 government documents that actually belonged in the National Archives.

There is nothing in the law to suggest “that a former president can successfully enforce administrative law to prevent the executive branch from reviewing and using its own data,” the Justice Department wrote Thursday.

“A suspension would simply allow the government to continue to review and use the same data – which, again, indisputably belongs to the government, not the plaintiff – including in its ongoing criminal investigation,” the department added.

Daniel Barnes, Ken Dilanian and Dareh Gregorian Chant contributed.

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