Lawyers for former President Donald Trump on Wednesday once again called for a federal judge to appoint an independent “special master” to review documents seized from Trump’s Florida home by the FBI.
The narrowly focused filing in U.S. District Court in West Palm Beach came one day after the Department of Justice argued that appointing a special master could harm the government’s national security interests.
The DOJ’s filing also said that “efforts were likely taken to obstruct the government’s investigation” into the records that had been shipped to Trump’s Mar-a-Lago residence after the end of his presidency.
And the DOJ revealed that the FBI seized more than 100 classified documents from the Palm Beach resort during its search of the premises earlier this month. The agency also shared a redacted FBI photo showing documents with classification markings that had been recovered from a container in Trump’s “45 Office.”
Trump’s legal team in its Wednesday night reply accused the DOJ of twisting “the framework of responding to a motion for a Special Master into an all-encompassing challenge to any judicial consideration, presently or in the future, of any aspect of its unprecedented behavior in this investigation.”
The government’s “extraordinary document” suggests “that the DOJ, and the DOJ alone, should be entrusted with the responsibility of evaluating its unjustified pursuit of criminalizing a former President’s possession of personal and Presidential records in a secure setting,” Trump’s lawyers wrote.
They also accused the DOJ of providing multiple “misleading or incomplete statement[s] of purported ‘fact,’” but offered few specifics.
Judge Aileen Cannon, who was appointed by Trump, has set a hearing for Thursday at 1 p.m. ET in a West Palm Beach courthouse.
Trump had sued to block the Justice Department from further investigating any materials taken in the Mar-a-Lago raid until a special master is able to analyze them. That step is typically taken when there is a chance that some evidence should be withheld from prosecutors because of various legal privileges.
The DOJ told the judge on Monday that its review of the seized materials was complete, and that a law enforcement team had identified a “limited set” of materials that may be protected by attorney-client privilege. That privilege often refers to the legal doctrine that protects the confidentiality of communications between an attorney and their client.
Trump’s lawyers responded Wednesday that the so-called privilege review team was “wholly deficient” in identifying and separating all potentially privileged documents from the rest of the seized materials.
Trump and his office have publicly claimed that he declassified all the documents that had been seized by the FBI. But Trump’s legal team has not made that explicit argument in the civil lawsuit before Cannon.
The DOJ in Tuesday’s late-night filing said that when 15 boxes were retrieved from Mar-a-Lago by the National Archives in January, Trump “never asserted executive privilege over any of the documents nor claimed that any of the documents in the boxes containing classification markings had been declassified.”
The government also said that no claims about declassification were made when FBI agents went to Mar-a-Lago on June 3, pursuant to a grand jury subpoena to collect any more records in Trump’s possession that bore classification markings.
The DOJ said it obtained that subpoena in May, after the FBI developed evidence that dozens of boxes with classified information — beyond the 15 boxes retrieved in January — were still at Trump’s residence.
“When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege. Instead, counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents,” the DOJ wrote.
At the same time, Trump’s custodian of records had also provided a sworn certification letter, claiming that “any and all” documents responsive to a grand jury subpoena had been handed over, the DOJ wrote.
But the FBI later “uncovered multiple sources of evidence” indicating that more classified documents remained at Mar-a-Lago, according to the DOJ’s filing.
“The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation,” the DOJ wrote.
That and other information led the government to seek a warrant to search Mar-a-Lago, which was ultimately carried out Aug. 8.
In their reply on Wednesday, Trump’s lawyers wrote that the DOJ’s account of the June 3 meeting “has been significantly mischaracterized.”
“If the Government provided the same untrue account in the affidavit in support of the search warrant, then they misled the Magistrate Judge,” the former president’s lawyers wrote.
Trump, in a social media post earlier Wednesday evening, also accused the DOJ of being “very deceiving” by sharing a photo that appears to show numerous classified papers strewn about on a carpeted floor.
Trump clarified that the FBI “took them out of cartons and spread them around on the carpet, making it look like a big ‘find’ for them.”
“They dropped them, not me – Very deceiving…And remember, we could have NO representative, including lawyers, present during the Raid. They were told to wait outside,” Trump wrote.