Washington — The months-long campaign by the National Archives and Records Administration to recover records that former President Donald Trump brought with him from the White House to his South Florida residence at the end of his presidency has given way to a legal showdown between the former president and Justice Department over the documents.
Trump made the opening move in the court fight in late August, when he filed a lawsuit in federal district court in Florida two weeks after the FBI executed a search warrant at Mar-a-Lago, his estate in Palm Beach. Agents took 33 items containing roughly 11,000 documents, approximately 100 of which were marked classified, according to a detailed inventory made public by the Justice Department.
Since then, an outside arbiter known as a special master has been appointed to vet the materials taken by federal investigators from Mar-a-Lago, and the Justice Department has prevailed — for now — in its effort to regain access to the subset of 100 sensitive materials after the district court stopped it from using for investigative purposes.
But with the special master facing a Nov. 30 deadline to complete his review of the seized materials, and the Justice Department’s investigation into Trump’s alleged improper handling of classified information and government records continuing, it’s unlikely the end of the legal battle is near.
Here’s a look at the events that have transpired on the legal front since Trump asked the courts to intervene. A timeline of the government’s earlier efforts to retrieve the documents can be found here.
2022
Aug. 22: Trump files a lawsuit against the Justice Department asking for the appointment of a special master to review the records seized by the FBI at Mar-a-Lago. The request comes more than two weeks after the initial search.
Aug. 27: U.S. District Judge Aileen Cannon, presiding over Trump’s request for a third party to review the seized items, issues a preliminary order indicating she is likely to appoint a special master.
Aug. 29: The Justice Department informs Cannon that the filter teams, acting separately from the investigative teams, had completed their search for potentially privileged material in the seized records.
Aug. 30: The Justice Department submits a 36-page response to Trump’s request for a special master, calling it “unnecessary,” and reveals they have evidence that Trump’s team might have obstructed their investigation.
Aug. 31: Trump claims in a post to Truth Social, his social media site, that he declassified the records displayed in the redacted FBI photo included in the Justice Department’s 36-page response.
“Terrible the way the FBI, during the Raid of Mar-a-Lago, threw documents haphazardly all over the floor (perhaps pretending it was me that did it!), and then started taking pictures of them for the public to see. Thought they wanted them kept Secret? Lucky I Declassified!” he writes.
Federal prosecutors, however, asserted in their filing that Trump’s representatives never “asserted that the former president had declassified the documents or asserted any claim of executive privilege.”
Separately, Trump’s legal team file a 19-page reply to the Justice Department’s opposition to the appointment of a special master. The former president’s lawyers again urge Cannon to tap a third party to review the documents seized from Mar-a-Lago and criticize the execution of the search warrant as “unprecedented, unnecessary, and legally unsupported.”
“Left unchecked, the DOJ will impugn, leak, and publicize selective aspects of their investigation with no recourse,” they write.
Federal prosecutors have argued sensitive records taken from Trump’s property belong to the government and should’ve been returned to the Archives at the end of his administration in January 2021. But Trump’s lawyers counter in their filing that the “notion that presidential records would contain sensitive information should have never been cause for alarm.”
They also argue the Archives should have made a “good faith effort” with Trump to recover the records, though the agency has made public numerous letters indicating their apparent willingness to work with the former president’s team to retrieve the materials brought to Mar-a-Lago.
Sept. 1: U.S. District Judge Aileen Connor orders the release of a detailed list of the property seized during the FBI’s Aug. 8 search at Mar-a-Lago, while reserving judgment on whether to appoint an outside party to review the documents.
Sept. 2: The detailed list of the property seized during the FBI’s search at Mar-a-Lago last month is released, a day after U.S. District Judge Aileen Cannon’s order to do so.
The newly released receipt of collected items lists multiple government documents and photographs with classified markings — including secret and top secret — and multiple empty folders, also with classification markings.
The sensitive documents and government property are listed in a way that indicated they were in containers mixed with more personal items, like magazines, newspapers, gifts and articles of clothing.
Sept. 5: Cannon approves Trump’s request to appoint a special master to review the records seized by the FBI during its search at Mar-a-Lago. She also orders the government to temporarily stop reviewing and using the recovered documents for its investigation “pending completion of the special master’s review or further court order.”
But Cannon allows the government to continue reviewing and using the materials seized for “purposes of intelligence classification and national security assessments.”
In her 24-page order, she sets a Sept. 9 deadline for the Justice Department and Trump’s lawyers to “meaningfully confer” and submit a joint filing that includes a list of proposed candidates to serve as special master, along with a proposed description of the mechanics of the review.
Sept 8: The Justice Department notifies the court that it intends to appeal Cannon’s decision authorizing the appointment of a special master to the 11th U.S. Circuit Court of Appeals.
Federal prosecutors also ask Cannon to partially lift her ruling to allow investigators to continue reviewing 103 documents taken from Mar-a-Lago marked “confidential,” “secret” or “top secret.”
They argue in court papers the classification markings “establish on the face of the documents that they are government records,” not Trump’s personal records and warn that the government and broader public will suffer what they view as “irreparable harm” if the materials cannot be reviewed and used in the criminal investigation into the former president’s handling of sensitive records.
Sept. 9: Federal prosecutors and Trump’s lawyers put forth two candidates apiece to serve as special master to review the documents seized by the FBI at Mar-a-Lago, meeting the deadline set forth by Cannon in her Sept. 5 order.
The Justice Department recommends retired judges Barbara Jones, who served in U.S. District Court in Manhattan, and Thomas Griffith, who served on the U.S. Court of Appeals in the District of Columbia.
Trump’s legal team suggests Raymond Dearie, former chief judge of the U.S. District Court for the Eastern District of New York, and Paul Huck, Jr., former general counsel to Florida Gov. Charlie Crist.
Sept. 12: Trump’s lawyers urge Cannon to continue to block federal investigators from using the 103 sensitive documents taken by the FBI and reject the Justice Department’s request to lift part of her Sept. 5 order.
In a 21-page court filing, the former president’s legal team calls the federal probe into his handling of sensitive records “unprecedented and misguided” and say there is “no indication any purported ‘classified records’ were disclosed to anyone.”
Lawyers for the former president also write that he had “broad authority” to declassify documents and, as a former president, has an “unfettered right” to access presidential records under the Presidential Records Act. The controversy surrounding the records, they tell the court, is a “document storage dispute that has spiraled out of control.”
“[T]he government wrongfully seeks to criminalize the possession by the 45th president of his own presidential and personal records,” Trump’s attorneys claim.
In a separate filing to the court, the former president’s lawyers also object to the Justice Department’s two special master candidates, Jones and Griffith. They do not detail their reasons for opposing the proposed contenders and tell the court “it is more respectful to the candidates from either party to withhold the bases for opposition from a public, and likely to be widely circulated, pleading.”
Trump’s lawyers ask the court for permission to express their objections to Jones and Griffith only if the judge “specifies a desire to obtain and consider that information.”
Separately, the Justice Department urges the court to select Jones, Griffith or Dearie, one of Trump’s candidates, as special master, citing their experience on the federal bench and engagement in “relevant areas of law.”
“Judges Jones, Griffith, and Dearie each have substantial judicial experience, during which they have presided over federal criminal and civil cases, including federal cases involving national security and privilege concerns,” the Justice Department lawyers write.
Federal prosecutors tell the court that they “respectfully oppose” the appointment of Huck, the second of Trump’s two special master contenders, because he lacks the experience shared by the other three proposed picks.
Sept. 15: Cannon appoints Dearie to serve as the special master to vet the documents seized by the FBI at Mar-a-Lago for personal items and documents, as well as material that may be potentially subject to claims of attorney-client or executive privileges.
In her appointing order, Cannon sets a Nov. 30 deadline for Dearie to complete his review and says Trump is responsible for the fees and expenses stemming from the special master’s work. She instructs Cannon and the parties, the Justice Department and Trump, to “prioritize, as a matter of timing, the documents marked as classified.”
In a separate order, Cannon rejects federal prosecutors’ request to allow its investigators to regain access to the roughly 100 documents marked classified. In her 10-page order, the judge refuted two of the premises outlined by the Justice Department in its motion: that the roughly 100 documents at the center of the request are classified records and that Trump could not have a “possessory interest in any of them,” and that Trump does not have a plausible claim of privilege as to any of these records.
“The court does not find it appropriate to accept the government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion,” she writes.
Sept. 16: Justice Department lawyers ask the U.S. Court of Appeals for the 11th Circuit to lift part of Cannon’s order barring investigators’ from using the roughly 100 documents marked classified for investigative purposes.
Sept. 20: Trump’s lawyers tell the 11th Circuit in a filing it should turn down the Justice Department’s request to regain access to the tranche of sensitive records, again claiming the government has “criminalized a document dispute.” They also say the Justice Department has not proven the documents at the crux of the dispute are classified.
But in a late-night reply to Trump’s filing, federal prosecutors call the former president’s efforts to raise questions about the records’ classification status a “red herring.”
Separately, Dearie meets for the first time with Justice Department lawyers and Trump’s legal team in federal court in Brooklyn and appears skeptical of the former president’s objection to providing him with information regarding any potential declassification of the sensitive records.
The former president’s lawyers argue in a letter to Dearie that doing so would force Trump to “fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the district court’s order.”
Sept. 21: A three-judge panel of the 11th Circuit grants the Justice Department’s request to allow its investigators to regain access to the roughly 100 documents bearing classification markings.
“For our part, we cannot discern why [Trump] would have an individual interest in or need for any of the one-hundred documents with classification markings,” Judges Robin Rosenbaum, Britt Grant and Andrew Brasher write in their 29-page unanimous opinion. “Classified documents are marked to show they are classified, for instance, with their classification level.”
The judges — Grant and Brasher were appointed by Trump, and Robinson was tapped by former President Barack Obama — also call the questions about declassification a “red herring” and write there is no evidence in the record before them that the sensitive materials were declassified.
