By Tierney Sneed, CNN
Former President Donald Trump on Tuesday told a federal appeals court that it should not lift the hold a lower court judge put on the Justice Department using Mar-a-Lago documents identified as classified in its criminal probe — and continued to try to cast doubt on whether the 100 or so documents that are at the center of the dispute are in fact classified.
Trump, who again declined to provide evidence that he had declassified the documents before leaving office, told the 11th US Circuit Court of Appeals that it should not buy the Justice Department’s argument that the documents should be presumed classified while the government reviews them. Trump said that the Justice Department, in its previous filing with the appeals court, “assumes — without either side presenting any proof — that the documents are, in fact, classified.”
The Justice Department late Tuesday countered Trump with a new submission to the appellate court, pointing to the former President’s recent dealings with a district court-appointed special master as it asked for the court to intervene in the dispute. The litigation at the 11th Circuit is playing out as the special master, Brooklyn-based senior Judge Raymond Dearie, has begun setting up the process for his review of documents seized by the FBI at Mar-a-Lago last month.
Trump’s latest filing emphasized the authority a president has to declassify records and leaned into the idea that the documents’ classification status at this point should be viewed as ambiguous.
“The Government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable. However, the Government has not yet proven this critical fact,” the Trump filing said.
Courts, including the US Supreme Court, have typically deferred to government assertions about whether information is too sensitive for disclosure.
The new Trump filing came after his lawyers on Monday evening told the senior judge serving as special master that they did not want to disclose at this point, for the special master review, specific information about whether the documents were declassified.
Trump has claimed in media interviews that he declassified the documents from his White House he took back to his Florida home, but his attorneys have stopped well short of making such an assertion in court.
The Justice Department is appealing a federal judge’s order pausing the investigation for the special master review, with prosecutors asking the appeals court to carve out the documents seized at Mar-a-Lago that were marked as classified.
In Tuesday’s filing with the 11th Circuit, Trump argued that “the District Court’s orders are a sensible preliminary step toward restoring order from chaos, and this Court should therefore deny the Government’s Motion.”
The case is traveling to the 11th Circuit after Trump successfully sued to obtain Dearie as special master — i.e. a third party attorney — to review the materials the FBI seized at Mar-a-Lago last month, and the focus is now around who can work through about 100 seized records marked as classified first.
Prosecutors have argued that pausing the criminal investigation into them poses national security risks. They say that the criminal probe cannot be decoupled from an intelligence community assessment of the documents that US District Judge Aileen Cannon has allowed to proceed.
In court filings last week, the Justice Department rejected the idea that Trump could claim that any of those 100 records were his personal records — a claim Trump could make as he tried to keep the materials from investigators’ hands. Additionally, the Justice Department has questioned how Cannon has inserted herself in the dispute in the first place, arguing that the judge did not have the authority to interfere with prosecutors’ review of the documents.
Trump, in his latest filing, defended Cannon’s approach, as he claimed the Justice Department’s investigation was “unprecedented and misguided.”
Justice Department points to ‘red herring’
The DOJ in its filing Tuesday night called the vague questions Trump’s lawyers have raised about whether the documents were actually classified a “red herring.” The department also noted that the Trump lawyers have resisted a proposal by the special master that they disclose what documents the former President claims to have had declassified before leaving office.
Prosecutors said that “even if Plaintiff could show that he declassified the records at issue, there would still be no justification for restricting the government’s use of evidence at the center of an ongoing criminal investigation.”
“The records’ classification markings establish that they are government records and that responsible officials previously determined that their unauthorized disclosure would cause damage — including ‘exceptionally grave damage’ — to the Nation’s security,” the prosecutors told the 11th Circuit Tuesday night. “Even if Plaintiff had actually declassified some or all of the records, that would not give rise to any claim of privilege or other basis for restricting the government’s use of them. “
The prosecutors highlighted that Trump has yet to lay out in court that he declassified the documents in question.
“To the contrary, after persuading the district court to grant injunctive relief and appoint a special master to adjudicate purportedly ‘disputed issues’ about the records’ status… Plaintiff has now reversed course: In response to the special master’s invitation to identify any records he claims to have declassified and offer evidence to support such claims, Plaintiff objected to ‘disclos[ing] specific information regarding declassification to the Court and to the Government,'” the prosecutors said.
Trump insists special master review will be only a ‘short pause’
In its Tuesday court filings, Trump’s lawyers repeatedly touted the expected quickness of the special master review, referring to it as a “short pause” and a “brief delay” that “merely delays the investigation for a short period while a neutral third party reviews the documents.”
In a footnote, however, Trump also argued that “at best” the government may be able to establish that some of the records in question belong with the National Archives, but Trump said they do not belong with the Justice Department.
“However, it is not even possible for this Court, or anyone else for that matter, to make any determination as to which documents and other items belong where and with whom without first conducting a thoughtful, organized review,” his filing said.
Another footnote hinted that he may be able to assert privilege over documents marked as classified that are said to have his handwritten notes.
In a letter to Dearie on Monday evening, the Trump team objected to the quick timeline set forth by the special master for interim steps in that review. His lawyers had also previously argued that the special master would need three months to do his work; Cannon has set a deadline for Dearie to issue her a report by November 30.
The Justice Department’s latest appellate filing pointed to that effort by Trump to push back some of those interim deadlines.
“Plaintiff states only that the injunction will last for a ‘short period,'” the department said. “At the same time, Plaintiff is already attempting to delay proceedings before the special master.”
This story has been updated with additional details.
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CNN’s Katelyn Polantz and Marshall Cohen contributed to this story.