That revelation came in a court filing yesterday by the justice department asking US district judge Aileen Cannon to let it continue reviewing some of the records seized by the FBI at Trump’s Mar-a-Lago estate while it investigates whether classified documents were illegally removed from the White House and improperly stored there.
Trump is under investigation for retaining government records, some of which were marked as highly classified, at the resort in Palm Beach, Florida, his home after leaving office in January 2021.
Prosecutors asked Cannon yesterday to let them continue reviewing about 100 records marked as classified as part of the probe.
The 100 documents represent a fraction of the more 11,000 records and photographs seized, most of which the government said it intends to allow Trump to review to because they are not marked as classified.
“This motion is limited to … the seized classified records because those aspects of the order will cause the most immediate and serious harms to the government and the public,” the department said in its court filing.
The prosecutors also asked the judge not to allow an independent arbiter, called a “special master,” to review classified materials seized from Trump’s property.
Trump, in a posting on his Truth Social platform, criticised the request, describing it as a waste of money.
The justice department yesterday also suggested there could be more classified records that were removed from the Trump White House that investigators have not yet located — a revelation came about a week after the justice department released a detailed list of property seized from Trump’s home which showed the FBI located 48 empty folders labelled as classified and another 42 which indicated they should be returned to a staff secretary or military aide.
Legal experts were perplexed as to why the folders were empty, and it was not clear whether records were missing.
“Without a stay, the government and the public will also suffer irreparable harm from the undue delay to the criminal investigation,” prosecutors wrote.
“The injunction against using classified records in the criminal investigation could impede efforts to identify the existence of any additional classified records that are not being properly stored — which itself presents the potential for ongoing risk to national security,” they added.
Ready to appeal
Prosecutors asked Cannon to rule on their request by Sept 15. If she denies their request, they said they intend to file an appeal to the Atlanta-based 11th US Circuit court of appeals, where six of the 11 active judges are Trump appointees.
Cannon, also a Trump appointee, on Monday ordered prosecutors to pause reviewing the more than 11,000 records they recovered from Trump’s estate while a special master is appointed to review the material.
The justice department said it will today provide the court a list of possible special master candidates, as Cannon has requested.
The justice department is also investigating Trump for possible obstruction of justice after revealing in prior legal filings it has evidence that records may have been removed or concealed from the FBI when it sent agents to Trump’s home in June to try to recover all classified documents through a grand jury subpoena.
Cannon granted Trump’s request for a special master, despite prosecutors’ objections.
The judge said the person will be tasked with reviewing documents that are not just covered by attorney-client privilege, but any records possibly covered by executive privilege as well. Executive privilege is a legal doctrine that can shield some presidential records from disclosure.
The justice department has challenged the logic of using a special master to review records covered by executive privilege in this case because Trump does not own the records and is no longer president. Her reasoning has also been criticized by Democratic and Republican legal experts.
“No potential assertion of executive privilege could justify restricting the executive branch’s review and use of the classified records at issue here,” the justice department wrote in its filing.
In Cannon’s Monday order, she allowed US intelligence officials to review all of the seized materials as part of their ongoing national security damage assessment.
But the justice department said there is no way to wall off the criminal investigation and the national security review.
“The ongoing Intelligence Community classification review and assessment are closely interconnected with — and cannot be readily separated from—areas of inquiry of DOJ’s and the FBI’s ongoing criminal investigation,” the prosecutors said.