U.S. District Judge Aileen Cannon had authorized the appointment of the special master, an independent third party who would review the thousands of records to identify personal items and information that could be protected by various legal privileges. As part of that ruling, Cannon temporarily stopped the DOJ from reviewing or using the seized material as part of its criminal investigation.
The DOJ appealed, asking the 11th Circuit to lift the part of Cannon’s order barring it from using the government records bearing classification markings and requiring the government to disclose those records to the special master.
Lawyers for Trump and the DOJ appeared in Brooklyn, New York, on Tuesday afternoon for a conference with the special master, U.S. District Judge Raymond Dearie. He was picked for the role by Trump and appointed by Cannon, who herself had been nominated by Trump.
But in Tuesday’s court conference, Dearie expressed skepticism toward Trump’s lawyers about which, if any, of the seized Mar-a-Lago records had been declassified, NBC News reported.
The DOJ has presented “prima facie evidence” that the documents with classified markings are, in fact, classified, Dearie said. Unless Trump’s lawyers could provide evidence to dispute that stance, “As far as I’m concerned, that’s the end of it,” Dearie said.
The FBI raided Mar-a-Lago on Aug. 8, seeking materials showing violations of laws against obstruction of justice and the removal of official records, as well as the U.S. Espionage Act.
The federal agents seized more than 100 documents with classified markings in that raid, the DOJ later revealed. Court documents also revealed that the FBI found four dozen empty folders marked “CLASSIFIED” during the raid. There are 11,000 documents at issue, Dearie said Tuesday.
Trump and his allies have argued in interviews and on social media that he declassified all the government records that were retrieved from Mar-a-Lago. But the ex-president’s lawyers have not echoed that claim in court.
On Tuesday, they instead told the appeals court that the DOJ has not proven that the documents are classified, and asserted that a president “has absolute authority to declassify any information.”