The Florida judge who disrupted the Justice Department’s probe into Donald Trump’s hoarding of classified material faces critical decisions this week in a legal tangle deepened by her granting the ex-President a big win in court last week.
The showdown over the appointment of a so-called special master is, so far, having just the effect Trump wants by slowing the investigation that led to FBI agents searching Mar-a-Lago last month. The Justice Department has already appealed that decision, which prosecutors had vigorously opposed and had opened up Judge Aileen Cannon, a Trump appointee, to criticism from some legal analysts, including Trump’s own former attorney general, William Barr.
Last week, the DOJ asked Cannon to reverse her decision to bar the FBI and DOJ prosecutors from using material taken from Trump’s home until the special master – a third party appointed to oversee evidence – had vetted it. It argued that the prohibition posed an unacceptable threat to national security. Monday morning, lawyers for Trump urged Cannon to reject the Justice Department’s attempt to continue to review seized documents.
And as a separate joint filing made clear on Friday, neither side can even agree on who the special master should be, what they should examine, how long the review should last and who should pay for it.
More legal filings could push the probe closer to the 2024 presidential campaign – a sensitive political matter since Trump is giving every sign he intends to be a candidate and has claimed the drama is a politically motivated attempt to keep him from winning a second White House term. In a reminder of the stakes involved, a forthcoming book by New York Times reporter and CNN political analyst Maggie Haberman reveals that Trump, in the aftermath of the 2020 election, said he would remain in the White House rather than let incoming President Joe Biden take over, a shocking disregard for longstanding American political precedent.
Trump is within his rights to fight for a special master, even if many legal experts argue that it’s clear the information he had belongs to the government and not him. But the former President also has a long record in his political and business career of exhausting the system of appeals to the fullest extent of the legal system, often in order to delay a moment when he might face accountability. His latest gambits and some of Cannon’s own writings in the case have sparked criticism that he’s getting special treatment.
Former Secretary of State Hillary Clinton, for instance, warned Sunday that he should be treated just like any other citizen.
Hear how Hillary Clinton thinks DOJ should treat Trump
“I do think that, just like any American, if there is evidence, that evidence should be pursued,” Clinton, whom Trump defeated in 2016, told CNN’s Dana Bash on “State of the Union” on Sunday.
In Cannon’s order last Monday, she had said that while prosecutors could not use material taken from Trump’s resort until they had been reviewed by the special master for legal and executive privilege issues, a review by intelligence agencies into possible damage to national security could continue. The DOJ, however, argued that was impractical.
In its filing late Thursday, which added up to a comprehensive critique of Cannon’s reasoning, the department argued that it and the FBI’s work on the criminal investigation could not be separated from the parallel probe by the intelligence community. In essence, they argued that the FBI and the DOJ are an integral part of the intelligence community. And they warned that the loss of the ability to examine whether critical intelligence had been jeopardized by Trump could cause grave damage.
“The government and the public are irreparably injured when a criminal investigation of matters involving risks to national security is enjoined,” the department argued when giving its notice of an appeal. And it also served notice that the DOJ will seek the intervention of the 11th Circuit Court of Appeals if Cannon does not grant its request to suspend parts of her ruling by September 15.
Democratic Sen. Mark Warner, the chairman of the Senate Select Committee on Intelligence, said on CNN’s “State of the Union” on Sunday that key congressional leaders had still not been briefed on potential intelligence vulnerabilities at Mar-a-Lago because of the tussle over the special master going on in Cannon’s court.
“We have not been briefed. We expect to be briefed,” the Virginia Democrat told Bash. “I think we’ll get some clarity on that in a couple days, and we expect to get that briefing,” he added.
Bash asks Senate Intel chair for answers on Mar-a-Lago search
But the latest legal wrangling between Trump’s team and the DOJ is to some extent obscuring the core question about the case: why did Trump keep classified documents, some bearing the designations of the government’s most closely guarded secrets in apparently unsecured conditions at a private home?
The mystery became even more acute when the Washington Post reported last week that the documents taken away from Mar-a-Lago by the FBI included details of a foreign power’s nuclear program. The way that Trump kept such documents, in a storage room or in his office with personal memorabilia, according to unsealed court documents, could be deeply consequential. In some circumstances, even the possibility that classified information was compromised could cause intelligence agencies to shut down operations abroad to protect sources and methods or even foreign assets who may need to go dormant or be extracted from vulnerable positions.
Cannon had given Trump’s legal team until Monday at 10 a.m. to file a formal response to the DOJ’s request that she suspend parts of her special master order.
“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 wrote in its request for a stay.
The department also argued that the injunction prevented the FBI from identifying any additional classified records that were not being properly stored at Mar-a-Lago and pointed to empty folders marked with “classified” banners that were found during the FBI’s search of Trump’s residence.
“The FBI would be chiefly responsible for investigating what materials may have once been stored in these folders and whether they may have been lost or compromised – steps that, again, may require the use of grand jury subpoenas, search warrants, and other criminal investigative tools and could lead to evidence that would also be highly relevant to advancing the criminal investigation,” the DOJ said in its filing to the judge.
The department’s argument implicitly makes the point to the judge that classified documents are in themselves the property of the US government and not of the former President. Some of Trump’s allies have suggested that he had previously declassified all the documents found at Mar-a-Lago. But there is no evidence that this ever took place. In fact, 18 former top Trump administration officials told CNN they never heard any such order issued during their time working for Trump, and that they believe the claim to be false.
And even if Trump had declassified material, US law states that presidential documents are not the property of the person who sat in the Oval Office but should be sent to the National Archives when a presidency ends.
Trump’s legal team countered: “In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records.”
Trump has not been charged with a crime. But the unsealed FBI search warrant of his home revealed the investigation is related to at least three potential violations of the law – including of the Espionage Act, obstruction of justice and criminal handling of government records.
The extraordinary spectacle of a former President’s home being searched by the FBI – after prolonged efforts by the government to get classified and other material back – has renewed questions of whether Trump could face criminal charges. This is hardly the only investigation involving the former President. The Justice Department also has a separate investigation into events leading up to and surrounding the Capitol insurrection. And there is yet another probe under way in Georgia into the alleged efforts by Trump and his team to overturn Biden’s victory in a critical swing state.
The possibility of Trump’s potential criminal liability was taken up on Sunday by Clinton, whom Trump frequently said should be locked up after some classified material was found on her private email server dating to emails sent to her by staff when she was secretary of state.
The FBI said in 2016 that of 30,000 emails Clinton provided to the State Department from her server, 110 contained classified information at the time they were sent or received. Then-FBI Director James Comey criticized Clinton for carelessness but concluded that no reasonable prosecutor would bring a case against her on the basis of evidence found and applicable laws.
While Trump’s supporters have argued he should get the same treatment as Clinton, the cases do not appear directly analogous.
“He’s not the president and we do have some special exceptions for someone actually in the office,” Clinton said on “State of the Union” referring to the former President. “So, I do think that, just like any American, if there is evidence, that evidence should be pursued,” Clinton said.
“I know it’s not an easy call. And so, I don’t want to inject my opinion into that difficult calculation. Because I don’t know all the facts. And unlike people who jump to conclusions, I don’t want to do that,” Clinton said.
“But if the evidence proves or seems to show that there are charges that should be leveled, then I think the rule of law should apply to anyone.”
This story has been updated with additional developments.