Former US president Donald Trump's attorneys on Monday said they oppose the US Justice Department's request to continue to review classified documents seized by the FBI from his Florida estate last month in an ongoing criminal investigation.
In a court filing, his lawyers also asked US District Judge Aileen Cannon to require an independent arbiter, called a special master, to include the roughly 100 documents with classification markings in its review of more than 11,000 records recovered during the court-approved August 8th search at Mr Trump's Mar-a-Lago estate in Palm Beach.
Mr Trump is under investigation for retaining government records, some of which were marked as highly classified, at Mar-a-Lago after leaving office in January 2021. The government is also investigating possible obstruction of the probe.
His lawyers in the filing said Mr Trump disputes the Justice Department's claim that the 100 records in question are in fact classified, and they reminded Judge Cannon that a president generally has broad powers to declassify records.
Declassified documents
However, they stopped short of suggesting that Mr Trump had declassified the documents - a claim he has made on social media but not in any official court filings.
"There still remains a disagreement as to the classification status of the documents," they wrote. "The government's position therefore assumes a fact not yet established."
The clash between the Justice Department and Mr Trump over how to treat classified material puts Judge Cannon on the hot seat to make a decision. If she rules that the Justice Department cannot continue relying on the classified materials for its criminal probe or insists on letting the special master review them, prosecutors have threatened to appeal to the Atlanta-based 11th US Circuit Court of Appeals.
"In what at its core is a document storage dispute that has spiralled out of control, the government wrongfully seeks to criminalise the possession by the 45th President of his own presidential and personal records," Mr Trump's lawyers wrote.
"The government should therefore not be permitted to skip the process and proceed straight to a preordained conclusion," they added.
The documents probe is one of several federal and state investigations Mr Trump is facing from his time in office and in private business. He has suggested he might run for president again in 2024, but has not made any commitment.
Civil lawsuit
About two weeks after the FBI searched Mr Trump's home, his attorneys filed a civil lawsuit demanding the appointment of a special master to review the seized records for materials that could be covered by attorney-client privilege or executive privilege - a legal doctrine that can shield some presidential records from disclosure.
The Justice Department has also opposed appointing a special master to review records for executive privilege claims, saying the records do not belong to the former president.
In ruling in favour of Mr Trump's request for a special master last week, Judge Cannon rejected the Justice Department's arguments that the records belong to the government and that because Mr Trump is no longer president he cannot claim executive privilege.
Judge Cannon was appointed to the bench by Mr Trump in 2020 just months before he left office.
If the special master decides some of the material is covered by Mr Trump's privilege claims, it could hamper the government's investigation.
Both sides each proposed their own list of two possible candidates for the job late on Friday. They are expected to update the court later on Monday about their views on each other's proposed candidates.
If the special master decides some of the material is covered by Mr Trump's executive privilege claims, it could hamper the government's investigation.
