WASHINGTON, Sept 8 (Reuters) – Former U.S. President Donald Trump’s team may not have returned all the classified records removed from the White House at the end of his presidency, even after an FBI search of his home, warned US prosecutors on Thursday, calling it. a potential national security risk to be investigated.
That revelation came in a lawsuit by the Justice Department, which asked U.S. District Judge Aileen Cannon to let it continue to review about 100 classified records seized by the FBI at Trump’s Mar-a-Lago estate while it investigates whether classified documents were removed illegally from the White House and improperly stored there.
Trump is under investigation for keeping government records, some of which were marked highly classified, at the Palm Beach, Florida, resort home of his home after leaving office in January 2021.
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The 100 documents represent a fraction of the more than 11,000 seized records and photographs, most of which the government said Trump can review because they are not classified.
“This proposal is limited to … the seized classified records because those aspects of the order would cause the most immediate and serious harm to the government and the public,” the department said in its lawsuit.
The prosecutors also asked the judge not to allow an independent arbitrator, called a “special master,” to review classified material seized from Trump’s estate.
Trump, in a post on his Truth Social platform, described the request as a waste of money.
The Justice Department suggested Thursday that there could be more classified records removed from the Trump White House that investigators have yet to find. That revelation comes about a week after the Justice Department released a detailed list of property seized from Trump’s home, which showed the FBI found 48 empty folders marked classified and another 42 that indicated they were to be returned to a staff secretary or military aide.
Legal experts were confused 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 as a result of the undue delay in the criminal investigation,” the prosecutor wrote.
“The injunction against using classified records in the criminal investigation may hamper efforts to identify the existence of any additional classified records that are not being properly preserved — which itself poses a potential continuing risk to national security,” they added. .
READY TO APPEAL
Prosecutors asked Cannon for a ruling by Sept. 15. If she denies their request, they intend to file an appeal with the Atlanta-based 11th US Circuit Court of Appeals, where six of the 11 active judges are Trump appointees.
In an order Thursday night, Cannon gave Trump’s attorney until Monday morning to respond to the government’s request.
Cannon, also a Trump appointee, ordered prosecutors on Monday to pause review of the more than 11,000 recovered records while a special master is appointed to review the material.
The Justice Department said it will provide the court on Friday with a list of possible special master candidates in a joint filing with Trump’s lawyers that Cannon has requested.
The Justice Department is also investigating possible obstruction of justice after it uncovered evidence showing records may have been removed or hidden from the FBI when it sent agents to Trump’s home in June to try to recover all classified documents through a subpoena a grand jury.
Cannon granted Trump’s request for a special master, despite prosecutors’ objections.
The judge said the special master will review documents not only covered by attorney-client privilege, but also any records possibly covered by executive privilege. Executive privilege is a legal doctrine that can protect some presidential records from disclosure.
The Justice Department has challenged the logic of using executive privilege because Trump does not own the records and is no longer president. Cannon’s reasoning has also been criticized by Democratic and Republican legal experts.
“No potential claim of executive privilege could justify limiting the executive branch’s review and use of the classified records at issue here,” the Justice Department wrote in its Thursday filing.
In Cannon’s Monday order, she allowed U.S. intelligence officials to review all of the seized materials as part of their ongoing assessment of national security vulnerabilities.
But the Justice Department said there is no way to delineate the criminal investigation and the national security probe.
“The ongoing intelligence classification review and assessment is closely related to — and cannot readily be separated from — areas of inquiry in DOJ’s and FBI’s ongoing criminal investigations,” the prosecutors said.
Some legal experts on Thursday praised the Justice Department’s approach to Cannon’s order, saying it carefully preserves its right to appeal broader concerns about a special master appointment, while asking Cannon for a much narrower solution for larger concerns.
“I think the government has embarked on a shrewd tactical strategy,” said David Laufman, a lawyer who previously served as head of the department’s counterintelligence division.
He said the department’s legal strategy is taking “a scalpel” to Cannon’s order by seeking immediate relief from its worst parts while still retaining its right to appeal in the future.
“They focus on what is most critical and most time-sensitive, both in terms of protecting America’s national security interests and in conducting follow-up investigative actions,” he said.
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Reporting by Sarah N. Lynch; additional reporting by Jacqueline Thomsen; Editing by Scott Malone, Alistair Bell and Josie Kao
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