By raising that concern, the lawyers acknowledged at least the possibility that the former president or his aides could be criminally charged in the case. Trump’s legal team has repeatedly suggested in court filings that the former president could have declassified the documents — but they have not actually asserted that he did so.
The newly appointed special master, federal judge Raymond J. Dearie, is weighing the mechanics of how to review about 11,000 documents, roughly 100 of which have classified markings, that were taken Aug. 8 when FBI agents executed a court-authorized search of Trump’s residence and private club.
Prosecutors say the search was necessary to recover highly sensitive national security papers, following months of prevaricating by Trump’s legal team about what classified documents he had in his possession after leaving the White House and whether he had given them all back to the government. Officials say they are investigating several potential crimes, including mishandling of national defense information and hiding or destroying government records.
Trump’s lawyers accuse the Justice Department of trying to turn a records-keeping dispute with the National Archives and Records Administration into a criminal case.
U.S. District Court Judge Aileen M. Cannon, a Trump appointee, granted Trump’s request for a special master — a neutral third-party legal expert — to review the seized documents to determine which may be covered by claims of attorney-client privilege or the far more vague and disputed assertion of executive privilege.
After Cannon appointed Dearie to serve as special master, Dearie ordered both sides to appear in his courtroom Tuesday to talk over the mechanics of reviewing the documents — even as the Justice Department is appealing parts of Cannon’s order.
Prosecutors have asked a higher court to stay Cannon’s decision that Dearie should review the classified as well as the nonclassified documents, and that the FBI and Justice Department cannot use the classified documents as part of their criminal investigation while the special master review is ongoing.
On Tuesday, Trump’s legal team replied to that argument, repeating their suggestion that prosecutors might be wrong about whether the 100 documents at the core of the case are classified.
“The Government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable. However, the Government has not yet proven this critical fact,” the Trump brief argues.
The Washington Post has reported that among the classified material the FBI retrieved from Mar-a-Lago was a document describing a foreign government’s military defenses, including its nuclear capabilities, according to people familiar with the search, who spoke on the condition of anonymity to describe sensitive details of an ongoing investigation.
Some of the seized documents detail top-secret U.S. operations so closely guarded that only the president, some members of his Cabinet or a near-Cabinet-level official could authorize other government officials to know details about them, these people said.
Records that deal with such programs are kept under lock and key, almost always in a secure compartmented information facility, with a designated control officer to keep careful tabs on their location.
Barrett reported from Washington.
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