WASHINGTON — The Justice Department asked an appeals court on Friday to let the F.B.I. regain access to about 100 sensitive documents taken from former President Donald J. Trump’s residence in Florida but did not try to block the appointment of an outside arbiter to review other materials.
In a 29-page filing, the department asked the appeals court not to submit the roughly 100 files marked as classified through the vetting process of the arbiter, known as a special master — acquiescing to the review for 11,000 other documents seized from Mr. Trump’s home and resort, Mar-a-Lago. The review has frozen the government’s access to the material as it investigates Mr. Trump’s handling of the documents.
“Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public,” wrote lawyers with the department’s national security division.
The filing was the latest turn in what began as a legal sideshow to the investigation into Mr. Trump’s hoarding of government documents — including some marked as highly classified — and refusal to return them, even after being subpoenaed.
In a ruling last week, Judge Aileen M. Cannon, a federal judge Mr. Trump appointed in 2020, granted his request that she impose a special master to vet all the material seized from Mar-a-Lago for both attorney-client privilege and executive privilege. She barred law enforcement agencies from using any of the documents for criminal investigative purposes until that work was done.
The Justice Department initially asked Judge Cannon to stay the portion of her order that blocked it from full investigative use of the 100 or so files with classification markings, but on Thursday she refused to do so. That prompted law enforcement officials to ask the U.S. Court of Appeals for the 11th Circuit, in Atlanta, to issue a stay instead.
The department’s filing described the request as “modest but critically important.” It said that “the government and the public would suffer irreparable harm absent a stay” because efforts to fully understand the effects of the haphazard storage of documents bearing classification markings could not proceed unless the lower court’s decision was partially reversed.
And it argued that denying agents access to the documents “unduly interferes” with the criminal investigation into possible obstruction and violations of the Espionage Act.
By contrast, Mr. Trump would suffer no harm if the government reclaimed and examined material that did not belong in his possession anyway, the department added.
On Thursday, Judge Cannon appointed Raymond J. Dearie, a semiretired judge from the Federal District Court for the Eastern District of New York who has experience in highly sensitive national security matters, to serve as a special master.
The Trump legal team had suggested Judge Dearie, and the government expressed no objections to his appointment if their appeal was rejected. On Friday, in his first official move as special master, Judge Dearie asked Mr. Trump’s lawyers and the Justice Department to send him “proposed agenda items” on Monday before an initial meeting about the document review on Tuesday at the Brooklyn federal courthouse.
In its motion for a partial stay of Judge Cannon’s order, the department also rejected Mr. Trump’s argument that he could assert executive privilege to block criminal investigators, who are part of the executive branch, from gaining access to the executive branch-owned materials as part of their work.
The filing cited a 1974 Supreme Court ruling that rejected President Richard M. Nixon’s attempt to use executive privilege to block the Watergate prosecutor from obtaining tapes of his Oval Office conversations, saying that precedent meant any assertion of executive privilege by Mr. Trump would be overcome as a matter of law.
And it faulted Judge Cannon for portraying the classification status of the seized documents as disputed. While Mr. Trump has publicly claimed that he had declassified everything he took to Mar-a-Lago, prosecutors stressed that “despite multiple opportunities” his team “has never” argued in court that he did so.
“If the records had actually been declassified, the government would have an additional compelling need to understand what had been declassified and why (and who has seen it) to protect intelligence sources and methods,” the filing said.
The motion asking the appeals court to immediately intervene escalates the fight between the Justice Department and Mr. Trump. The 11th Circuit will confront a series of legal and constitutional issues centered on Judge Cannon’s intervention in the investigation, and on Mr. Trump’s claim that as a former president, he still wields sweeping powers of executive privilege.
Six of the 11 active judges on the appellate court in Atlanta were appointed by Mr. Trump.
Judge Cannon’s order imposing a special master with broad authority and enjoining the government was a victory for Mr. Trump and his legal team, which has sometimes struggled to keep up with the demands of the case; they filed their request for a special master weeks later than many of his allies had urged.
Yet in refusing to stay parts of her order on Thursday, the judge also made several concessions to the government.
She said the F.B.I. could continue parts of its investigation about what had happened to the documents, so long as it did not present them to a grand jury or ask witnesses questions about their contents.
And she instructed Judge Dearie to first look at the documents with classification markings and “thereafter consider prompt adjustments to the court’s orders as necessary” — a nod to the Justice Department’s request to rapidly assess the most sensitive materials.
That raised the possibility that Judge Dearie might quickly clear those items and that the F.B.I. would then regain unrestricted use of them in its criminal inquiry. In her order, Judge Cannon said the special master should try to finish his review by Nov. 30.
But the Justice Department told the appeals court that Judge Cannon’s concessions were “insufficient” to mitigate what it portrayed as damage to national security caused by her intervention in limiting the F.B.I.’s ability to investigate any possible disclosures of the files, or whether any are still missing.
In making its case, the department provided its most detailed explanation to date of why it contends Judge Cannon’s blocking of immediate access to the documents marked as classified, if allowed to stand, will hamper the intertwined criminal investigation and national security assessment.
By forbidding criminal investigators from analyzing the contents of the documents or using them to conduct witness interviews, the department said, Judge Cannon was thwarting efforts to discern any potential patterns in the types of records that Mr. Trump kept. Such insights might help identify any other records that may still be still missing — a question raised by the F.B.I.’s discovery of empty folders for classified material in the search.
The materials, the filing said, “were stored in an unsecure manner over a prolonged period, and the court’s injunction itself prevents the government from even beginning to take necessary steps to determine whether improper disclosures might have occurred or may still occur.”
