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DOJ warns judge that delaying the FBI’s Trump investigation is a national security risk

The Justice Department files an extraordinarily savvy response to the Trump judge’s “special master” order.

Former president Donald Trump speaks to supporters at a rally to support local candidates at the Mohegan Sun Arena on September 3, 2022, in Wilkes-Barre, Pennsylvania.
Spencer Platt/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

On Monday, Judge Aileen Cannon — a Trump appointee to the federal bench — issued a surprising order that effectively halted much of the Justice Department’s criminal investigation into classified records it recovered last month from former President Donald Trump. Cannon’s legal reasoning has been widely mocked by lawyers from across the political spectrum.

Today, the Justice Department made its first attempt to regain control over the classified documents.

In a motion asking Cannon to stay parts of her order, the Justice Department warns that the order risks “irreparable harm to our national security and intelligence interests” by sabotaging the intelligence community’s efforts to determine whether any of the sensitive information contained in the seized records has leaked beyond Trump. To understand why, you have to understand a bit about what makes Cannon’s order odd.

In her Monday order, Cannon ruled that she would appoint an official known as a “special master” to comb through the several boxes of documents the FBI seized from Trump’s Florida residence, and determine if any of those documents might be protected by attorney-client privilege or executive privilege. The FBI says it seized these documents from Mar-a-Lago as part of a criminal investigation into potential violations of several statutes prohibiting unauthorized retention of national security documents, including the Espionage Act. (Trump denies any wrongdoing.)

But that investigation hit a huge roadblock Monday, because Cannon also prohibited the Justice Department “from further review and use of any of the materials seized from Plaintiff’s residence ... for criminal investigative purposes” until the special master’s review is complete.

The DOJ’s motion seeks a partial stay of this order. It seeks permission to continue using the classified documents in its criminal investigation, as well as a ruling that the special master will not review the classified documents themselves.

Under the process that typically governs stays of a federal district court’s decisions, the DOJ must first ask Cannon to suspend parts of her order before it may ask a higher court for a stay. The DOJ indicated in its motion that it will seek such a stay from an appeals court “if the Court does not grant a stay by Thursday, September 15.” The government also formally announced on Thursday that it will appeal Cannon’s order.

The FBI says Cannon’s order undermines US national security

The FBI took several boxes of documents from Mar-a-Lago, Trump’s Florida residence, 103 of which had classified markings. According to the Washington Post, these papers include “a document describing a foreign government’s military defenses, including its nuclear capabilities.”

According to the Justice Department’s motion, assessing the “potential damage to our national security and intelligence interests” of having these documents remain insecure for so long is of “vital importance.”

Technically, Cannon’s order permitted the intelligence community to continue its investigation into whether Trump’s alleged theft of these classified documents harmed national security. But, as the Justice Department explains in its Thursday motion, “the ongoing Intelligence Community (‘IC’) 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 FBI is both a law enforcement body and “part of the Intelligence Community,” the DOJ explains. Indeed, the FBI is the intelligence agency with primary responsibility for conducting intelligence investigations within the United States. For this reason, “the same personnel from the FBI involved in the criminal investigation were coordinating appropriately with the IC in its review and assessment.” And the FBI often relies on criminal investigative tools, such as grand jury subpoenas or search warrants, to conduct intelligence investigations.

Thus, the DOJ argues, preventing the FBI from conducting a criminal investigation into the classified documents also frustrates its intelligence investigation. As the DOJ explains, “any FBI agent or analyst who investigated whether the classified records were improperly accessed, for instance, would by definition be gathering information highly relevant to — and thus in furtherance of — ‘criminal investigative purposes.’”

The DOJ makes several very savvy concessions in its motion

In her Monday decision, Cannon gave several reasons why she believed that Trump should be able to seek the return of some of the seized documents, and then referred to these reasons as justification for appointing a special master. Cannon claimed, for example, that “at least a portion” of the seized records include “medical documents, correspondence related to taxes,” “accounting information,” and “material potentially subject to attorney-client privilege” that Trump may need for his personal business.

The Justice Department’s motion announces that it will make several concessions to Trump, in an apparent effort to take some of Cannon’s objections off the table. Specifically, the DOJ reveals that it “plans to make available to [Trump] copies of all unclassified documents recovered during the search — both personal records and government records — and that the government will return [Trump]’s personal items that were not commingled with classified records and thus are of likely diminished evidentiary value.”

Thus, Cannon will no longer be able to argue that the FBI has deprived Trump of access to his personal documents. And, by returning at least some of the non-classified documents, the DOJ will also reduce the number of records that a special master could review.

Cannon’s Monday order was highly unusual and rested on extraordinarily dubious legal reasoning. Among other things, Cannon argued that Trump is entitled to special protections that are not ordinarily afforded to other criminal suspects because he used to be president. So it remains to be seen whether any concessions by the DOJ — or any warnings that Cannon is endangering national security — could move this judge to reconsider her earlier approach.

If Cannon does not reconsider, the next move will be to the US Court of Appeals for the 11th Circuit, where Trump appointees hold six of the court’s 11 active judgeships.