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DOJ appeals judge's order barring its use of classified materials in Mar-a-Lago probe

A sign marks the facade of the Department of Justice building in Washington on May 5, 2022.
Patrick Semansky
A sign marks the facade of the Department of Justice building in Washington on May 5, 2022.

Updated September 16, 2022 at 9:34 PM ET

The Justice Department is asking the 11th Circuit Court of Appeals in Atlanta to lift part of an order from Judge Aileen Cannon that bars the government from using classified materials seized from Mar-A-Lago in its investigation and requiring the government to disclose those materials to the special master appointed in the case.

The DOJ is not appealing the entire order establishing the special master process, asking for what it deems "modest but critically important relief."

The appeal was expected; in a filing last week, the department had given Judge Aileen Cannon a deadline until Sept. 15 to respond to their request.

The department has not been able to use the seized material in their criminal investigation since Cannon's order to deny the DOJ access to the classified documents and appoint a special master to review the material for any that Trump may be able to assert privilege over,

The 11th Circuit mostly compromises Republican judges, many of whom were appointed by Trump. But Neal Devins of William and Mary School of Law told NPR that while Cannon, a Trump appointee, has been siding with the former president thus far, the judges on the court of appeals may not necessarily follow suit.

"We may actually see Trump judges on the 11th Circuit overturn this decision, just as we saw Trump judges during the elections reject claims of election fraud pretty much uniformly," Devins said.

In this aerial view, former U.S. President Donald Trump's Mar-a-Lago estate is seen on September 14, 2022 in Palm Beach, Florida.
Joe Raedle / Getty Images
Getty Images
In this aerial view, former President Donald Trump's Mar-a-Lago estate is seen on Sept. 14 in Palm Beach, Fla.

In the meantime, a special master has been selected to get involved in the investigation.

Thursday night, Cannon named Raymond Dearie as special master to review materials seized from former President Donald Trump's Mar-a-Lago estate, denying the Justice Department's request to block the process, in which the government cannot use the materials seized for their criminal investigation until the review is complete.

Dearie, a veteran federal judge, was a candidate proposed by Trump who the Justice Department did not object to. He holds senior status in the Eastern District of New York and was first appointed by Ronald Reagan.

Cannon directed Dearie to issue interim reports and recommendations "as appropriate" during the review, which she ordered to be complete by Nov. 30, closer to the timeline request by the Trump lawyers. The government wanted the review done by mid-October.

The Justice Department had previously stated that they didn't want the special master to have access to classified material, but Cannon has said that request is meritless. But she did say that the court would direct the special master to prioritize the "approximately 100 documents marked as classified."

Cannon also says she's unconvinced with the government's argument that the FBI's criminal investigation into the documents is intertwined with the intelligence community's assessment.

Cannon notes that Trump's team will bear the cost of the professional fees and expenses of the special master and any support staff or expert consultants who are engaged with the process. Trump's team had originally requested the cost be split between them and the government.

The Justice Department has said they will appeal the order for a special master.

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Deepa Shivaram
Deepa Shivaram is a multi-platform political reporter on NPR's Washington Desk.