The intelligence community’s assessment of national security risks stemming from Trump’s possession of the classified materials has two tracks, as laid out by Director of National Intelligence Avril Haines in a letter to congressional committee leaders last month. The first review centers on the classification levels of the seized documents, and the second examines the national security fallout if the materials were improperly disclosed.
Both reviews ramped back up this week after a three-judge panel on Wednesday reversed major elements of a previous ruling by US District Court Judge Aileen Cannon.
In her decision granting Trump’s request for a special master to sift through the classified documents and separate potentially privileged materials, Cannon barred DOJ from using that set of documents to advance its criminal investigation.
She later clarified that her prior order should not prevent the national security reviews from moving forward, but DOJ said that wasn’t sufficient because the two actions are “inextricably linked.” In a recent court filing, prosecutors said “the criminal investigation is itself essential to the government’s effort to identify and mitigate potential national-security risks.”
Prosecutors also argued Cannon’s order was unworkable because the FBI — which executed the search warrant on Trump’s estate and is an integral part of the criminal probe — is also a key member of the intelligence community and could be roped into the damage assessment.
The 11th Circuit’s Wednesday ruling blocked parts of Cannon’s order, allowing prosecutors to use documents with classification markings as part of the criminal probe. The panel sharply rejected Cannon’s reasoning and embraced DOJ’s assertions that the criminal review of the records was a crucial element of assessing national security damage.
“No party has offered anything beyond speculation to undermine [DOJ’s] representation — supported by sworn testimony — that findings from the criminal investigation may be critical to its national-security review,” the judges wrote.
Citing consultations with the Justice Department in the wake of Cannon’s initial ruling, ODNI said earlier this month that it had paused “the classification review of relevant materials and assessment of the potential risk to national security that would result from the disclosure of the relevant documents, ” according to a spokesperson.
An intelligence briefing for congressional leaders on the documents found at Mar-a-Lago was put on hold after Cannon’s ruling, too, but it’s unclear when that might occur. The intelligence community’s work is of paramount importance to members of Congress, especially the select few who have intelligence oversight responsibilities.
“We haven’t heard anything,” Senate Intelligence Vice Chair Marco Rubio (R-Fla.) said in a brief interview this week. “I don’t know why they’ve been so unresponsive. I don’t see the rationale for it. At some point, we’ll have to increase the scrutiny.”
Meanwhile, members of Congress have not yet been briefed about what was recovered at Trump’s Mar-a-Lago estate — or anything else about the Justice Department’s investigation. A highly redacted document outlining the department’s rationale for seeking a search warrant for Trump’s home revealed that prosecutors are investigating possible violations of the Espionage Act, the Presidential Records Act, and obstruction of justice.
“The predominant concern that we have is getting to the bottom of whether any sources or methods have been compromised, and now need to be mitigated,” House Intelligence Chair Adam Schiff (D-Calif.) said on Tuesday.
Nicholas Wu and Kyle Cheney contributed to this report.