The filing acknowledged that classified material was found in Mar-a-Lago, but argued that it should not have been a cause for alarm — and should not have led to a search of Trump’s Florida residence earlier this month.
The Justice Department had said in court files that the search was undertaken after the FBI developed evidence that Trump’s team had hidden material after it claimed all classified material had been turned over in June.
“The alleged justification for initiating this criminal investigation was the alleged discovery of sensitive information in the 15 boxes of presidential documents,” Trump’s attorneys wrote. “But this ‘discovery’ was to be expected entirely given the nature of the presidential data. Simply put, the idea that presidential data might contain sensitive information should never have been cause for alarm.”
Trump’s attorneys argue that under the Presidential Records Act, the records should have acted in good faith to ensure the restoration of the presidential records, rather than refer a criminal investigation to the Justice Department.
Hearing Thursday on special master
Trump filed the lawsuit early last week — 14 days after the search warrant was executed — alleging his constitutional rights had been violated in the search. He demanded that a special master be appointed to review the material seized by the FBI in Mar-a-Lago. A special captain is an outside attorney appointed by courts in some situations—often those where law firms have been searched—to review government-obtained evidence and filter out privileged materials that should be kept out of the hands of detectives.
The Justice Department argued in Tuesday’s filing that appointing a special captain would be both “unnecessary” and a step that would hinder criminal investigation and risk assessment by the intelligence community. Prosecutors argued that Trump did not cross the procedural thresholds necessary to raise the question.
The DOJ said Trump’s scenario — one that focused primarily on questionable claims of executive privilege — was much different from the situations in which special masters were typically appointed. In those cases, the material that falls under attorney-client privilege is the primary concern.
Prosecutors have previously told the court that “a limited array of materials” that may cover attorney-client privilege were recovered during the search. The DOJ’s internal filtering team has already finished separating those materials from what’s shared with investigators, the department said Tuesday, and the rest of the documents have already been reviewed by the agents working on the case.
This story has been updated with additional details.