WASHINGTON — The Justice Department said Monday that it was willing to accept one of Donald Trump's picks for an independent arbiter to review documents seized during an FBI search of the former president's Florida home last month.
The accommodation could help accelerate the selection process and shorten any delays caused by the appointment of the so-called special master. The judge in the case, granting a request from the Trump team, said last week that she would appoint a neutral arbiter to go through the records and weed out any that may be covered by executive privilege or attorney-client privilege.
Department lawyers said in a filing Monday night that, in addition to the two retired judges whom they earlier recommended, they would also be satisfied with one of the Trump team selections — Raymond Dearie, the former chief judge of the federal court in the Eastern District of New York. He is currently on senior active status, and the department said he had indicated he was available and "could perform the work expeditiously" if appointed.
It was not immediately clear whether U.S. District Judge Aileen Cannon would name Dearie or someone else. The Trump team said earlier Monday that it opposed both Justice Department selections.
The back-and-forth over the special master came as Trump's lawyers in a 21-page filing Monday dismissed the former president's retention of top-secret documents at Mar-a-Lago as a "storage dispute" and urged Cannon to keep in place a directive that temporarily halted key aspects of the Justice Department's criminal probe. The Trump team referred to the documents that were seized as "purported 'classified records,'" saying the Justice Department had not proven that the materials taken by the FBI during its Aug. 8 search were classified or remain so now.
The filing underscores the significant factual and legal disagreements between lawyers for Trump and the U.S. government as the Justice Department looks to move forward with its criminal investigation into the retention of national defense information at Mar-a-Lago. Department lawyers in their own filings have rejected the idea that the documents, many of them classified at the top-secret level, belonged to Trump or that Mar-a-Lago was a permissible place to store them.
"This investigation of the 45th President of the United States is both unprecedented and misguided," they wrote. "In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records."
The investigation hit a roadblock last week when Cannon granted the Trump team's request for a special master and prohibited the department, for now, from examining the documents for investigative purposes.
The Justice Department has asked the judge to lift that hold and said it would contest her ruling to a federal appeals court. The department said its investigation risked being harmed beyond repair if that order remained in place, noting that confusion about its scope had already led the intelligence community to pause a separate risk assessment.
But Trump's lawyers said in their own motion Monday that Cannon should not permit the FBI to resume its review of classified records. It said the government had unilaterally determined the records to be classified but had not yet proven that they remain so.
"In opposing any neutral review of the seized materials, the Government seeks to block a reasonable first step towards restoring order from chaos and increasing public confidence in the integrity of the process," the lawyers wrote.
Both sides on Friday night proposed different names of candidates who could serve as special master, though they disagreed on the scope of duties the person should have. Cannon has said the yet-to-be-named arbiter would be tasked with reviewing the documents and segregating out any that could be covered by claims of either executive privilege or attorney-client privilege.
The Justice Department recommended either Barbara Jones, a retired judge in Manhattan who has served as special master in prior high-profile investigations, or Thomas Griffith, a retired federal appeals court jurist in the District of Columbia who was appointed to the bench by former President George W. Bush. The department said in its proposal that the special master should not have access to classified documents, or be empowered to consider claims of executive privilege.
On Monday, the Trump team told the judge it was objecting to both those candidates but was not prepared to say why publicly at the moment.
Trump's lawyers proposed either Dearie, a senior judge on active status in the federal court in Brooklyn who also previously served on the Foreign Intelligence Surveillance Court, or Florida lawyer Paul Huck Jr. They have have said the arbiter should have access to the entire tranche of documents and should be able to evaluate executive privilege claims.
The Justice Department said it was willing to support Dearie's selection but it opposed the selection of Huck because of what it said was a lack of relevant experience.
In its filing Monday, the Trump team again voiced a broad view of presidential power, asserting that a president has an "unfettered right of access" to his presidential records and absolute authority to declassify any information without the "approval of bureaucratic components of the executive branch" — though it did not say, as Trump has maintained, that he had actually declassified them.
The Justice Department has said Trump had no right to hold onto the presidential documents. And the criminal statutes the department has used as the basis of its investigation, including one criminalizing the willful retention of national defense information, do not require that the records be classified.
In any event, the Justice Department says more than 100 documents with classification markings were found in last month's search.
Trump, who often spends time at his various properties, was at his Virginia golf club Monday