The intelligence community’s assessment of the national security risks arising from Trump’s possession of classified material has two tracks, as Director of National Intelligence Avril Haines explained in a letter to congressional committee leaders last month. The first review focuses on classification levels of seized documents, while the second review examines the national security implications if materials are improperly disclosed.
Both reviews escalated again this week after a three-judge panel on Wednesday overturned key elements of an earlier ruling by U.S. District Judge Eileen Cannon.
In its decision to grant Trump’s request for a special master to scrutinize classified documents and separate potentially privileged materials, Cannon prevented the Department of Justice from using that collection of documents to advance its criminal investigations.
She later clarified that her advance order should not prevent the national security reviews from moving forward, but the Department of Justice said this was not enough because the two procedures are “closely related.” In a recent court filing, prosecutors said, “The criminal investigation itself is essential to the government’s efforts to identify and mitigate potential national security risks.”
Prosecutors also argued that Cannon’s order was unenforceable because the FBI — which carried out the search warrant on Trump’s estate and is an integral part of the criminal investigation — is also a key member of the intelligence community and could be drawn to a damage assessment.
Wednesday’s Eleventh Circuit decision blocked parts of Cannon’s order, allowing prosecutors to use hashtag documents as part of a criminal investigation. The commission vigorously rejected Cannon’s reasoning and adopted the Justice Department’s assertion that criminal review of records was a critical component of assessing harm to national security.
Neither side has offered anything other than speculation to undermine it [DOJ’s] representation—supported by sworn testimony—that the findings of a criminal investigation may be critical to his review of national security,” the judges wrote.
Citing consultations with the Department of Justice following Cannon’s initial ruling, the Office of the Director of National Intelligence said earlier this month that it had paused “a review of the classification of relevant materials and assessment of potential national security risks that may result from the disclosure of related documents, according to a spokesperson Official.
An intelligence briefing to congressional leaders on documents found in Mar-a-Lago was also suspended after Cannon’s ruling, but it’s unclear when that might happen. The work of the intelligence community is of paramount importance to members of Congress, especially the select few who have intelligence oversight responsibilities.
“We haven’t heard anything,” Vice President of Senate Intelligence Marco Rubio (R-Fla.) said in a short interview this week. “I don’t know why they didn’t respond so well. I don’t see the rationale for that. At some point, we will have to step up scrutiny.”
Meanwhile, members of Congress have not yet been briefed on what has been recovered at Trump’s Mar-a-Lago estate — or anything else related to the Justice Department investigation. A highly revised document outlining the department’s rationale for requesting a search warrant for Trump’s home reveals that prosecutors are investigating potential violations of the Espionage Act, the Presidential Records Act and obstruction of justice.
“Our overriding concern is getting to the bottom of whether any sources or methods have been compromised, and now need to be mitigated,” House Intelligence Chief Adam Chef (D-CA) said on Tuesday.
Nicholas Wu and Kyle Cheney contributed to this report.