By Jacqueline Thomsen
WASHINGTON (Reuters) - The U.S. Justice Department on Friday asked a federal appeals court to let it resume reviewing classified materials seized in an FBI search of former President Donald Trump's Florida estate.
In the filing before the U.S. Court of Appeals for the 11th Circuit, the Justice Department said the circuit court should halt part of the lower court decision that prevents prosecutors from relying on the classified documents in their criminal investigation into the retention of government records at Trump's Mar-a-Lago residence in Palm Beach after his presidency ended.
The department also asked that a third party appointed to examine all the records taken in the federal raid at Trump's part, Senior U.S. Judge Raymond Dearie, not be permitted to review the classified materials.
The government asked the appeals court to rule on the request "as soon as practicable."
Trump's attorneys did not immediately respond to a request for comment.
In the unprecedented search of the former president's property, the Justice Department has said it is investigating the retention of government records - some marked as highly classified, including "top secret" - as well as obstruction of a federal probe.
The Justice Department must now convince the Atlanta-based appeals court, with a conservative majority, to take its side in litigation over the records probe. Trump appointees make up six of the 11 active judges on the 11th Circuit.
The government's motion comes after U.S. District Judge Aileen Cannon on Thursday rejected the same requests from the Justice Department.
Cannon, whom Trump appointed to the bench in 2020, had said she would tell Dearie, who is filling the role of a "special master" in the case, to prioritize the classified records in his review, which she set a Nov. 30 deadline to complete.
There were roughly 100 classified documents among the 11,000 records gathered in the FBI's court-approved Aug. 8 search at the former president's Mar-a-Lago resort.
If Cannon's ruling stands, experts said, it would likely stall the Justice Department investigation involving the government records.
The government's Friday filing at times directly took issue with Cannon's prior decisions in the case. Prosecutors said the judge cited court papers from Trump's lawyers that suggested the former president could have declassified the documents marked as classified, but those legal briefs stopped short of claiming Trump did so.
"The court erred in granting extraordinary relief based on unsubstantiated possibilities," the government lawyers wrote.
The Justice Department also criticized Cannon's direction that classified records be disclosed to Dearie and Trump's lawyers as part of an outside review of all records taken in the search, and described the former president's attorneys as potentially being witnesses to "relevant events" in the criminal probe.
The department is also looking into possible obstruction of the probe after it found evidence that records may have been removed or concealed from the FBI when it sent agents to Mar-a-Lago in June to try to recover all classified documents through a grand jury subpoena.
Trump's lawyers had opposed the government's latest requests to Cannon, telling the judge in a Monday filing they dispute the government's claim that all the records are classified, and that a special master is needed to help keep prosecutors in check.
Trump's attorneys instigated the litigation over the records investigation last month, seeking a third party to go over the materials taken by federal agents and determine if any should be shielded from investigators. The former president's legal team argued that some materials could be covered by attorney-client privilege or executive privilege - a legal doctrine that can shield some presidential records from disclosure.
Cannon granted that request in a Sept. 5 ruling, rejecting Justice Department arguments that the records belong to the government and that because Trump is no longer president he cannot claim executive privilege.
Dearie said earlier on Friday he will hold his first hearing on the privilege review for the seized documents on Tuesday, at the federal courthouse in Brooklyn.
(Reporting by Jacqueline Thomsen; Editing by Tim Ahmann and William Mallard)