While prosecutors have already appealed some of U.S. District Judge Aileen M. Cannon’s appointment as special director, Friday was their first appeal against the entire court order. If the U.S. Court of Appeals for the 11th Circuit sided with the government, the special master’s review would stop — criminal investigators would once again be given access to thousands of unclassified documents seized from Mar-a-Lago by FBI agents in August.
The government said in its appeal that the unclassified documents were critical to its ongoing criminal investigation into possible mishandling of classified material, obstructing and destroying government records, and could help them conduct witness interviews and corroborate evidence.
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“In short, unclassified records stored with classified-marked records can determine who is responsible for unauthorized retention of those records, the relevant period of time in which they were created or accessed, and who may have accessed or viewed those records, ” reads the document.
The Atlanta-based appeals court said Trump’s lawyers could submit their responses on Nov. 10. As part of the appeal, attorneys for the Justice Department updated the number of documents obtained from Mar-a-Lago, which was previously said to be around 11,000, but is now around 13,000.
Trump’s lawyers are asking for a screening of the seized material — including 103 documents marked classified — after two weeks of seeking outside experts to determine if any are protected by attorney-client or executive privilege, and whether should be protected from criminal investigators.
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Prosecutors argued in a 53-page filing on Friday that Trump was not authorized to assert any kind of privilege over government documents, so the review by Brooklyn U.S. Judge Raymond J. Dearie was unnecessary.
Cannon initially ordered the special director to review classified and unclassified material and barred the Justice Department from using any documents in a criminal investigation until the review was complete. A panel of the U.S. Court of Appeals for the 11th Circuit overturned part of that decision, which removed classified material from Dearie’s review and gave investigators immediate access to the documents.
On Thursday, the Supreme Court rejected a petition by Trump’s lawyers asking it to review parts of the appeals court’s ruling on narrow technical grounds.
Cannon has said Dearie will complete its review of unclassified documents by December.