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DOJ officials appeal special master review of documents seized by the FBI


The Justice Department is appealing a court order for a special master in the investigation into former President Donald Trump's handling of classified information.


Prosecutors say they have serious concerns about handing government secrets to a third party. And the intelligence community has had to pause its assessment of national security risks because of the judge's broad wording in the decision.

MARTÍNEZ: NPR's justice correspondent Carrie Johnson is here. Carrie, remind us quickly about what the judge had ruled earlier this week.

CARRIE JOHNSON, BYLINE: Sure. Judge Aileen Cannon, who was appointed by former President Trump, had imposed a special master to review about 11,000 pages investigators took from Trump's estate in Florida. She wants this special master to sift through those papers for possible attorney-client privilege issues and executive privilege issues. The judge says the FBI can't use those pages for now in its ongoing criminal investigation into alleged obstruction and willful retention of information related to the national defense. But she had allowed the intelligence community to continue a security assessment for any potential damage from having those papers stored at Mar-a-Lago. The Justice Department says there's no executive privilege when it comes to those classified papers and that anyway, they don't belong to the former president.

MARTÍNEZ: Now, legal experts had predicted an appeal from the Justice Department. So what's the DOJ so worried about?

JOHNSON: Prosecutors are especially worried about giving 100 pages of classified material to a special master. They've actually asked for a stay in the judge's order just on the classified material part. They want to be able to review those classified papers freely themselves. And they don't want to give them to a third party. DOJ says it needs to determine what happened to several dozen folders. They were marked classified, but those folders were empty. They want to know what was in those folders and whether that material may have been lost or compromised in some way.

MARTÍNEZ: The judge said that she did not want to get in the way of the review the intelligence community is doing about possible national security risk of having these papers at a resort in Florida. And I understand there's some news about that there.

JOHNSON: Some important news. No matter what the judge says, the Justice Department says, they cannot draw a clear line between the criminal side of this investigation and the national security side. The two probes are linked. The director of national intelligence has actually paused the risk assessment because of how broadly the judge ruled in this case. And the head of the counterintelligence division of the FBI filed an affidavit yesterday saying the judge's order is causing irreparable harm to national security. He says the FBI is really the only part of the intelligence community that can investigate and recover government secrets that have been improperly retained out in the wild by using grand jury subpoenas and other tools. And both reviews are necessary, the Justice Department says, given how sensitive these papers are.

MARTÍNEZ: So does that mean a special master might still be named to review other papers from Mar-a-Lago?

JOHNSON: It looks like it might happen. Both sides have a deadline by midnight Friday to send a list of proposed candidates to be the special master to this judge. Of course, DOJ says it already reviewed a lot of this material for possible attorney-client privilege, found only 520 pages could relate to attorney-client privilege. And as for executive privilege, the Justice Department says that shouldn't apply here, that these papers belong to the executive branch. And the executive branch needs them for this ongoing and very important criminal investigation.

MARTÍNEZ: NPR's Carrie Johnson. Thanks, Carrie.

JOHNSON: My pleasure. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

A Martínez is one of the hosts of Morning Edition and Up First. He came to NPR in 2021 and is based out of NPR West.
Carrie Johnson is a justice correspondent for the Washington Desk.