By Sarah N. Lynch
WASHINGTON (Reuters) -Former U.S. President Donald Trump's team may not have returned all the classified records removed from the White House at the end of his presidency even after an FBI search of his home, U.S. prosecutors warned on Thursday, calling it a potential national security risk that needs investigation.
That revelation came in a Justice Department court filing asking U.S. District Judge Aileen Cannon to let it continue reviewing about 100 classified records seized by the FBI at Trump's Mar-a-Lago estate while it investigates whether classified documents were illegally removed from the White House and improperly stored there.
Trump is under investigation for retaining government records, some of which were marked as highly classified, at the resort in Palm Beach, Florida, his home after leaving office in January 2021.
The 100 documents represent a fraction of the more than 11,000 records and photographs seized, most of which the government said Trump may review because they are not classified.
"This motion is limited to ... the seized classified records because those aspects of the order will cause the most immediate and serious harms to the government and the public," the department said in its court filing.
The prosecutors also asked the judge not to allow an independent arbiter, called a "special master," to review classified materials seized from Trump's property.
Trump, in a posting on his Truth Social platform, described the request as a waste of money.
The Justice Department on Thursday suggested there could be more classified records that were removed from the Trump White House that investigators have not yet located. This revelation comes about a week after the Justice Department released a detailed list of property seized from Trump's home which showed the FBI located 48 empty folders labeled as classified and another 42 which indicated they should be returned to a staff secretary or military aide.
Legal experts were perplexed as to why the folders were empty, and it was not clear whether records were missing.
"Without a stay, the government and the public will also suffer irreparable harm from the undue delay to the criminal investigation," prosecutors wrote.
"The injunction against using classified records in the criminal investigation could impede efforts to identify the existence of any additional classified records that are not being properly stored - which itself presents the potential for ongoing risk to national security," they added.
READY TO APPEAL
Prosecutors asked Cannon for a ruling by Sept. 15. If she denies their request, they intend to file an appeal to the Atlanta-based 11th U.S. Circuit Court of Appeals, where six of the 11 active judges are Trump appointees.
In an order on Thursday evening, Cannon gave Trump's lawyer's until Monday morning to respond to the government's request.
Cannon, also a Trump appointee, on Monday ordered prosecutors to pause reviewing the more than 11,000 recovered records while a special master is appointed to review the material.
The Justice Department said it will on Friday provide the court a list of possible special master candidates in a joint filing with Trump's attorneys, as Cannon has requested.
The Justice Department is also investigating possible obstruction of justice, after it uncovered evidence showing that records may have been removed or concealed from the FBI when it sent agents to Trump's home in June to try to recover all classified documents through a grand jury subpoena.
Cannon granted Trump's request for a special master, despite prosecutors' objections.
The judge said the special master will review documents not just covered by attorney-client privilege, but any records possibly covered by executive privilege as well. Executive privilege is a legal doctrine that can shield some presidential records from disclosure.
The Justice Department has challenged the logic of using executive privilege because Trump does not own the records and is no longer president. Cannon's reasoning has also been criticized by Democratic and Republican legal experts.
"No potential assertion of executive privilege could justify restricting the executive branch's review and use of the classified records at issue here," the Justice Department wrote in its Thursday filing.
In Cannon's Monday order, she allowed U.S. intelligence officials to review all of the seized materials as part of their ongoing national security damage assessment.
But the Justice Department said there is no way to wall off the criminal investigation and the national security review.
"The ongoing Intelligence Community classification review and assessment are closely interconnected with — and cannot be readily separated from—areas of inquiry of DOJ’s and the FBI’s ongoing criminal investigation," the prosecutors said.
Some legal experts on Thursday lauded the Justice Department's approach to Cannon's order, saying it carefully preserves its right to appeal broader concerns about a special master appointment, while at the same time asking Cannon for a much narrower solution for bigger concerns.
"I think the government has embarked on a shrewd tactical strategy," said David Laufman, an attorney who previously served as chief of the department's counterintelligence section.
He said the department's legal strategy takes "a scalpel" to Cannon's order by seeking immediate relief from its worst parts, while still preserving its right to appeal in the future.
"They are focusing on what is most critical and most time-sensitive, both with respect to protecting the national security interests of the United States and with conducting follow-up investigative action," he said.