Lawyers for former US president Donald Trump have asked a federal judge to prevent the FBI from continuing to review documents recovered from his Florida estate earlier this month until a neutral special master can be appointed to inspect the records.
The request was included in a court filing, the first by Mr Trump’s legal team in the two weeks since the search, that takes broad aim at the FBI investigation into the discovery of classified records at Mar-a-Lago and that foreshadows arguments his lawyers are likely to make as the probe proceeds.
The filing casts the August 8 search, in which the FBI said it recovered 11 sets of classified documents from Mar-a-Lago, as a “shockingly aggressive move” and asserts that the action took place even through Mr Trump had been “fully co-operative” for weeks as federal agents scrutinised the presence of presidential records at Mar-a-Lago.
It also attacks the warrant as overly broad and asserts that the Justice Department should not be afforded “trust us” deference in conducting the investigation.
“Law enforcement is a shield that protects America. It cannot be used as a weapon for political purposes,” the lawyers wrote on Monday.
“Therefore, we seek judicial assistance in the aftermath of an unprecedented and unnecessary raid” at Mar-a-Lago, they said.
In a separate statement, Mr Trump said “ALL documents have been declassified” and described the records as having been “illegally seized” from his home.
The Justice Department countered in a terse three-sentence statement that the search had been authorised by a federal judge after the FBI showed there was probable cause to believe a crime had been committed.
It said it would respond in court to the motion.
The filing specifically requests the appointment of a special master not connected to the case who would be tasked with inspecting the records recovered from Mar-a-Lago and setting aside those that are covered by executive privilege – a principle that permits presidents to withhold certain communications from public disclosure.
In some other high-profile cases – including investigations involving Rudy Giuliani and Michael Cohen, two of Mr Trump’s personal lawyers – that role has been filled by a retired judge.
“This matter has captured the attention of the American public. Merely ‘adequate’ safeguards are not acceptable when the matter at hand involves not only the constitutional rights of President Trump, but also the presumption of executive privilege,” the lawyers wrote.
The lawsuit argues that the records, by virtue of having been created during Mr Trump’s White House tenure, are “presumptively privileged”.
But the Supreme Court has never determined whether a former president can assert executive privilege over documents, writing in January that the issue is unprecedented and raises “serious and substantial concerns”.
The high court turned down Mr Trump’s plea to block records held by the National Archives from being turned over to the January 6 committee, saying then that his request would have been denied even if he had been the incumbent president, so there was no need to tackle the thorny issue of a former president’s claims.
The lawsuit seeks to paint Mr Trump as compliant with investigators, saying members of his personal and household staff were made available for voluntary interviews and quoting him as telling FBI and Justice Department officials during a June visit to Mar-a-Lago: “Whatever you need, just let us know.”
But the chronology of events suggests that search took place only after other options to recover classified documents from the home had been incomplete or unsuccessful.
In May, for instance, weeks before the search, the Justice Department issued a subpoena for records bearing classification markings.
After the meeting at Mar-a-Lago in June involving FBI and Justice Department officials, investigators interviewed another witness who told them that there were likely additional classified documents still stored at Mar-a-Lago, according to a person familiar with the investigation.
The new lawsuit filed on Monday was assigned to US District Judge Aileen M Cannon, who was nominated by Mr Trump in 2020 and confirmed by the Senate by 56-21 later that year.
She is a former assistant US attorney in Florida, handling mainly criminal appeals, and is a member of the conservative Federalist Society, according to her biography.
The months-long investigation, which burst into public view with the Mar-a-Lago search, emerged from a referral from the National Archives, which had retrieved 15 boxes of documents and other items from the estate that should have been turned over to the agency when Mr Trump left the White House.
An initial review of that material concluded that Mr Trump had brought presidential records and several other documents that were marked classified to Mar-a-Lago.
Separately on Monday, a federal judge acknowledged that redactions to an FBI affidavit spelling out the basis for the search might be so extensive as to make the document “meaningless” if released to the public.
But he said he continued to believe it should not remain sealed in its entirety because of the “intense” public interest in the investigation.
A written order from US Magistrate Judge Bruce Reinhart largely restates what he said in court last week, when he directed the Justice Department to propose redactions about the information in the affidavit that it wants to remain secret.
That submission is due on Thursday at noon.
Justice Department officials have sought to keep the entire document sealed, saying disclosing any portion of it risks compromising an ongoing criminal investigation, revealing information about witnesses and divulging investigative techniques.
They have advised the judge that the necessary redactions to the affidavit would be so numerous that they would strip the document of any substantive information and make it effectively meaningless for the public.
Judge Reinhart acknowledged that possibility in his Monday order, writing: “I cannot say at this point that partial redactions will be so extensive that they will result in a meaningless disclosure, but I may ultimately reach that conclusion after hearing further from the government.”
