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Justice Department appeals order to create special master for Mar-a-Lago documents

AILSA CHANG, HOST:

The Justice Department is appealing a judge's order that would create a special master to review documents that the FBI found at former President Trump's Florida home, Mar-a-Lago. Legal experts had predicted an appeal, citing the broad language in the ruling. NPR's Carrie Johnson has been following the story, and she's here with us now. Hey, Carrie.

CARRIE JOHNSON, BYLINE: Hi, Ailsa.

CHANG: OK. So remind us; what was in the judge's original order?

JOHNSON: This Florida judge, Aileen Cannon, who is an appointee of the former President Donald Trump, had ordered a special master to review these 11,000 documents for possible attorney-client privilege and executive privilege and maybe to look for possible personal papers that belong to the former president too. She also ordered the Justice Department, at least for now, not to use these papers it gathered at the Florida estate as part of its ongoing criminal probe into obstruction and willful retention of information related to the national defense.

CHANG: OK. So what exactly is the focus of the Justice Department's appeal now?

JOHNSON: You know, here's what we know so far. The Justice Department is seeking a pause or a stay of the judge's order during this appeals process. Prosecutors mentioned two parts in particular - one that's enjoined the government from reviewing records that have classified markings and two, the part that requires the Justice Department to give those classified papers to the special master. DOJ wants an answer from this judge quickly. They say if she doesn't move on this by September 15, next week, DOJ is going to go to the 11th Circuit Appeals Court. It appears this request is limited to something like 100 documents. These are the classified ones that are being stored separately from the other papers the FBI collected.

CHANG: Wait a minute. But what about the national security review that's already underway? Aren't those papers already being reviewed?

JOHNSON: Some news here too, Ailsa. The judge said she wanted that risk assessment by the director of national intelligence to continue. But DOJ says things are not that simple. It's hard to separate that intelligence review from the work of the Justice Department and the FBI. And the Justice Department says uncertainty about the judge's order and the language there has actually caused the intelligence community to spend its work on that risk assessment too. DOJ also says it's important the FBI investigate about four dozen empty folders at Mar-a-Lago that were marked classified. They want to figure out what was in those folders and whether the papers may have been lost or compromised.

CHANG: Well, I know, Carrie, that you have been talking to lawyers around the country of what kind of person would be particularly qualified to serve as a special master in this case? What have they been telling you?

JOHNSON: Yeah. A lot of people are talking about a need for somebody to have a security clearance, a top secret security clearance already and also maybe a retired federal judge. But it's going to be hard to find somebody who's acceptable to both the Biden Justice Department and the lawyers for former President Donald Trump. It does appear that the Justice Department does not object to having some kind of a special master, but it's really concerned about the pause in its investigation, the risk assessment the intelligence community is doing and also the handling of these highly classified papers.

CHANG: That is NPR justice correspondent Carrie Johnson. Thank you so much, Carrie.

JOHNSON: My pleasure. Transcript provided by NPR, Copyright NPR.

Carrie Johnson is a justice correspondent for the Washington Desk.