The Justice Department moved to quickly dismantle the independent review of documents seized from Donald Trump’s Mar-a-Lago estate, contending that the review — ordered by U.S. District Court Judge Aileen Cannon — is impeding its criminal investigation.
In a 15-page filing asking a federal appeals court to speed its consideration of the issue, prosecutors complained the “special master” review prevents DOJ from accessing thousands of non-classified records recovered from the former president’s estate.
While those documents don’t present the same urgent national security concerns as the smaller volume of classified materials DOJ successfully fought to regain access to earlier this month, Justice Department officials said the continued blockade on non-classified materials had slowed investigators’ efforts to determine how some of the classified records were transferred to Mar-a-Lago and whether any of them were improperly accessed.
“The government is … unable to examine records that were commingled with materials bearing classification markings, including records that may shed light on, for example, how the materials bearing classification markings were transferred to Plaintiff’s residence, how they were stored, and who may have accessed them,” DOJ officials, including counterintelligence chief Jay Bratt, wrote in the filing with the Atlanta-based 11th Circuit Court of Appeals. “The records not marked as classified may also constitute evidence of potential [obstruction] and [concealment or removal of government records].”
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The Justice Department is seeking an expedited review of its appeal of Cannon’s order establishing the special master review. Though legal briefing in the appeal was slated to carry through mid-December or longer, DOJ’s proposed expedited schedule would conclude that process by mid-November and have oral arguments set soon thereafter.
The filing also hints at prosecutors’ irritation with Cannon, a Trump appointee confirmed days after his defeat in the 2020 election. The Justice Department noted that she has repeatedly overruled decisions made by the special master she appointed at Trump’s suggestion, Senior U.S. District Court Judge Raymond Dearie. Those rulings could significantly delay Dearie’s review, prosecutors indicated.
“Based on the district court’s orders thus far, the government is barred from accessing all of the materials except those with classification markings recovered in August pursuant to a lawful search warrant — and it may continue to be barred from doing so until mid-December or later,” the officials wrote as they asked the appeals court to weigh in promptly on the legal issues, including Trump’s claims of executive privilege.
“Absent such resolution by this Court, the special master proceedings could result in prolonged litigation, including through seriatim appeals to the district court from reports and recommendations and other rulings issued by the special master,” the prosecutors wrote.
The Justice Department’s motion also seeks to capitalize on a ruling earlier this month from an 11th Circuit panel which unanimously granted the government’s request to exclude about 100 documents with classification markings from the special master review. Prosecutors suggest that decision may have created a precedent that undermines Cannon’s essential rationale for the review.
Despite press reports that one member of Trump’s legal team, attorney Christopher Kise, has stepped back from involvement in the special master litigation, the government’s new filing says Kise was the lawyer prosecutors consulted about Trump’s position regarding the government’s request to expedite the appeal. Kise said Trump’s side plans to oppose it, according to the filing.
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Former President Trump is scheduled to give testimony on Oct. 19 in a deposition for the defamation suit filed against him by a woman who has accused him of rape.
A letter filed in court Friday from the attorney of E. Jean Carroll, who accused Trump of raping her in the 1990s, revealed the scheduling. Trump’s legal team had argued that a deposition was a “more practical” way for Carroll to obtain the information she is seeking instead of providing documents.
The filing comes after the U.S. Court of Appeals for the Second Circuit ruled Tuesday that Trump has legal protection through a federal law that provides broad immunity to government employees. The ruling was a partial victory for Trump, but the court asked the D.C. Court of Appeals to weigh in on whether Trump was acting “outside the scope” of his office when he allegedly defamed Carroll.
Trump has denied Carroll’s allegation that he raped her and has accused her of lying. He has also attacked her physical appearance.
Carroll’s lawyer argued that the Second Circuit court’s ruling did not impact the main question of whether the United States should be substituted in for Trump in the lawsuit since he was the president when he made his comments.
Trump’s attorney had asked a federal judge to deny Carroll’s request that Trump sit for a deposition, but Carroll’s attorney said Trump should not be able to avoid the deposition just because the question of substitution is still unsettled.
The Justice Department, under Attorneys General William Barr and Merrick Garland, has argued that Trump’s comments were made in the context of his responsibilities so the U.S. should be substituted in. Carroll’s attorneys have said that she plans to file a separate civil suit against Trump for sexual assault.