Thanks to all who recc’d and added further to the discussion of There is a necessary, fair answer to address the Florida judge’s special master ruling going forward, in which I argued that there was no reason that the seized classified documents could not be reviewed first and quickly, and should not be needlessly tied up in a review of separate, less important documents.
Thankfully, the DOJ today has adopted our thinking and did so frankly in an even more effective way. The DOJ today filed a motion to stay the court’s order pending appeal only as to the classified documents. In other words, instead of my idea that the Special Master should knock out the classified dox first, the DOJ argues that there should be no restrictions on the classified documents (including Special Master review) until an appeals court orders otherwise.
That is a better formulation of the relief to seek, and it is the proper way forward (while the rest of the decision is hopefully overturned at some point). One paragraph
from the DOJ brief (emphasis added):
The Court enjoined further review and use of the seized materials “for criminal investigative purposes” pending review by a special master to determine whether any of those materials are personal materials subject to return under Rule 41(g) and to address potential claims of attorney-client or executive privilege. D.E. 64 at 23. As the government has explained, those steps were not warranted as to any of the seized materials in the possession of the investigative team. D.E. 48 at 22-32. But even under the Court’s contrary reasoning, there is no justification for extending the injunction and special-master review to the classified records. The classification markings establish on the face of the documents that they are government records, not Plaintiff’s personal records. The government’s review of those records does not raise any plausible attorney-client privilege claims because such classified records do not contain communications between Plaintiff and his private attorneys. And for several reasons, no potential assertion of executive privilege could justify restricting the Executive Branch’s review and use of the classified records at issue here.
Bravo. The classified documents are the driver of this investigation. There is no reason to hold back their use in the criminal investigation, and the judge’s abhorrent decision loses much of its damage — and protection for Trump — if consideration of the classified documents is not enjoined and delayed.
And if this Trump appointed judge denies this request, the DOJ can renew the same argument to the appellate court. It is the right way to go.