The Justice Department filed court papers Monday signaling that it would accept a former chief federal judge in New York as a special master charged with reviewing papers seized by the FBI from former president Donald Trump’s Mar-a-Lago residence and club.
Dearie, 78, still serves as a judge in Brooklyn federal court, albeit on senior status, which means he can take a reduced caseload if he chooses. He was the U.S. attorney in Brooklyn in the 1980s — a time when the office’s workload was dominated by the pursuit of mobsters, gang leaders and financial fraudsters. Dearie was nominated to the federal bench by President Ronald Reagan and became one of the most highly regarded jurists in the Eastern District of New York. He previously served on the Foreign Intelligence Surveillance Court, which oversees sensitive national security cases.
It now falls to Cannon to decide whether to appoint Dearie to be the special master. She also must resolve disputes about how the special master should proceed, including who will pay for the special master’s work, whether the review will include an examination of classified documents, and whether to lift, at least temporarily, the judge’s prior restriction barring the FBI from using those documents in its ongoing investigation.
How the judge rules on those outstanding issues could well determine whether Trump’s fight with the Justice Department gets further entangled with appeals.
Cannon agreed to the appointment of a special master on Labor Day and barred the Justice Department from using any of the more than 11,000 seized documents in its criminal probe until they had been reviewed. The Justice Department then asked the judge to exempt about 100 documents with classified markings from that order, citing an urgent need to be able to examine them and address any national security concerns raised by them being stored outside of secure government custody.
On Monday, Trump’s legal team responded to the Justice Department request by suggesting in its own legal filing that some of the seized documents that were marked classified may not be, and that the former president may have the right to keep the materials in his possession.
“In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records,” the Trump lawyers wrote in their own court filing, arguing that prosecutors are trying to limit any outside review of “what it deems are ‘classified records.’ ”
The filing, submitted by Trump lawyers Christopher Kise, Lindsey Halligan, Evan Corcoran and James Trusty, argued that the government “has not proven” that the materials marked classified are actually still classified. It said prosecutors are overstating the national-security concerns and that “there is no indication any purported ‘classified records’ were disclosed to anyone.”
Steven Aftergood, a security specialist at the Federation of American Scientists, said those legal arguments do not accurately reflect how the government protects presidential records and sensitive national security information.
“These arguments are about things that the former president wishes are true, but are not,” said Aftergood, who from 1991 to 2021 directed the FAS Project on Government Secrecy, which tried to reduce the scope of national security secrecy and promote public access to government information. “An impartial judge will not have difficulty dismissing most of these arguments.”
The Washington Post has reported that among the documents seized by the FBI was one describing a foreign government’s military defenses, including its nuclear capabilities, according to people familiar with the situation who spoke on the condition of anonymity to discuss it. Those people also said some of the seized documents detail top-secret U.S. operations that are so closely guarded that many senior national security officials are kept in the dark about them.
The Justice Department has said in court filings that among the 100-plus classified documents taken in August, some were marked “HCS,” a category of highly classified government information that refers to “HUMINT Control Systems,” which are systems used to protect intelligence gathered from secret human sources. There were also dozens of empty folders marked classified, according to a government inventory filed in court, and documents marked confidential, secret and top-secret.
In their filing, Trump’s lawyers also said the government’s investigation of the documents should be centered around the Presidential Records Act — a civil law that says presidential records belong to the government, not the individual president. Trump’s attorneys wrote that their interpretation of parts of the act suggests that Trump has “an absolute right to access” his presidential records. They did not address criminal statutes — including a part of the Espionage Act — that the government alleges may have been violated by keeping or hiding classified documents at Mar-a-Lago.
As a former president, Trump has no say in what information is classified and what is declassified, Aftergood said. Nor do former presidents have a say in what materials are considered their personal property rather than government property. A new administration, in theory, could reclassify information that a previous president declassified.
Aftergood also said that if the exposure of a document threatens national security, there are other laws that protect these materials from being possessed by civilians, even if they are declassified. For example, the section of the Espionage Act that says it is illegal to remove documents or records related to national security from their proper place if doing so could risk the security of the country does not reference classified or unclassified documents.
Trump’s lawyers suggest in their filing that recent coverage of the documents case shows the government is being selective and unfair when it raises concerns about national security, citing The Post’s reporting that materials involving a foreign country’s nuclear capabilities were among the documents seized.
“The Government is apparently not concerned with unauthorized leaks regarding the contents of the purported ‘classified records,’ ” the filing reads.
Trump’s lawyers opposed the Justice Department’s two special master candidates, retired judge Barbara S. Jones, who acted as a special master in an investigation of Trump’s former lawyer Rudy Giuliani; and Thomas B. Griffith, a retired appeals judge for the District of Columbia Circuit.
The Justice Department opposed one of Trump’s proposed candidates, Paul Huck Jr., a former deputy attorney general for the state of Florida, citing his lack of judicial experience.
“Judges Jones, Griffith and Dearie each have substantial experience, during which they have presided over federal criminal and civil cases, including federal cases involving national security and privilege concerns,” the Justice Department’s filing said.
The legal battle is the culmination of a fight over records taken to Mar-a-Lago that began almost as soon as Trump left office in early 2021. The National Archives and Records Administration and the Justice Department tried for months to get Trump to return all White House and presidential documents still in his possession, according to court filings in the case.
In May, the government subpoenaed Trump, asking for all the classified documents he still had. His lawyers told the government in response to the subpoena that everything had been returned.
But the FBI search last month yielded an additional 27 boxes containing a mix of personal items and classified and unclassified government material.