Garland Makes Counter Move To Bypass Trump Document Obstruction

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In line with an expedited schedule previously established by the 11th Circuit Court of Appeals for hearing arguments in the dispute, the Justice Department has now formally appealed the selection of what’s known as a special master for reviewing documents seized from Trump’s southern Florida Mar-a-Lago resort in August.

The August raid of the property was part of an ongoing criminal investigation into the handling of government materials from the Trump administration. Hundreds of classified records have been recovered from the former president’s possession since he left office. In public, Trump has repeatedly raised the idea he declassified the records, but no substantive evidence for this notion, which his lawyers haven’t conclusively argued in court, has emerged. Trump’s legal team has pointed to presidential powers of declassification but little more specific. In newly filed arguments before the 11th Circuit, the Justice Department argues the classification status of the materials doesn’t even matter to establishing their investigative relevance. If Trump formally made these documents unprotected, the government would still have an interest in examining and understanding the ramifications, including for national security, of that decision.

“If any records were actually declassified,” the Justice Department said, “the government would have an additional compelling need to understand which formerly classified records had been declassified, why, and how, in order to evaluate the effects of any such declassification, including on the protection of intelligence sources and methods and on the classification status of related records or information.” That argument isn’t necessarily central to the current status of the special master’s review. (A special master is a court-appointed third-party expert, who in this case is leading an examination of documents recovered from Mar-a-Lago and arbitrating any privilege claims from the ex-president.) The 11th Circuit already permitted Justice Department investigators to use items marked classified and recovered from Mar-a-Lago in the raid for investigative purposes. The government’s contentions about classification status eventually connect, it would seem, to their push for the unclassified documents under scrutiny in the special master’s review.

These documents, the government says, could provide critical investigative context for their broader probe, revealing clues about the handling of the materials, including timing and identities of those involved. And that broader probe is urgent, as the lack of relevance to the classification arguments further establishes. “In short, the unclassified records that were stored collectively with records bearing classification markings may identify who was responsible for the unauthorized retention of these records, the relevant time periods in which records were created or accessed, and who may have accessed or seen them,” the government said in court. Prosecutors also revised their description of the total number of documents seized from Mar-a-Lago upward, from 11,000 to 13,000. Trump’s response is due in early November.

Featured image: Gage Skidmore/ Creative Commons