Former President Donald Trump told a federal appeals court on Tuesday that he should not lift a lower court judge’s ban on the Justice Department using Mar-a-Lago documents identified as classified in his criminal investigation — and continued to try to challenge whether the 100 or so documents at the center of the dispute are indeed classified.   

  Trump again, however, refused to provide evidence that he had declassified the documents before leaving office.   

  Trump told the 11th U.S. Circuit Court of Appeals that he shouldn’t buy the Justice Department’s argument that the documents should be considered classified while the government reviews them.  Trump said the Justice Department, in its earlier filing with the appeals court, “assumes — without either side presenting any evidence — that the documents are, in fact, classified.”   

  Trump’s latest testimony underscored the power a president has to declassify records and hinted at the idea that the classified status of the documents at this point should be considered ambiguous.   

  “The Government again assumes that the documents it claims are classified are in fact classified and their separation is inviolable.  However, the administration has yet to prove this critical fact,” Trump’s filing said.   

  The new filing comes after Trump’s lawyers told the senior judge serving as a special master on Monday night that they did not want to reveal at this point, for the special examination-in-chief, specific information about whether the documents were declassified.   

  Trump has argued in media interviews that he declassified White House documents he took back to his Florida home, but his lawyers have not made such a claim in court.   

  The Justice Department is appealing a federal judge’s order halting the special master review investigation, with prosecutors asking the appeals court to strike documents seized at Mar-a-Lago that had been marked classified.   

  In Tuesday’s filing with the 11th Circuit, Trump argued that “the District Court’s orders are a logical preliminary step toward restoring order out of chaos, and therefore this Court should deny the government’s motion.”   

  The case travels to the 11th Circuit after Trump successfully sued to get a special master — that is, a third-party lawyer — to review materials seized by the FBI at Mar-a-Lago last month, and now the focus is around who can edit about 100 seized files marked as sorted first.   

  Prosecutors have argued that stopping the criminal investigation poses risks to national security.  They say the criminal investigation cannot be disconnected from the intelligence community’s assessment of the documents that US District Judge Aileen Cannon allowed to go forward.  In court filings last week, the Justice Department rejected the idea that Trump could claim any of those 100 files were his personal records — a claim Trump could make as he tries to keep the material out of the hands of researchers.  In addition, the Justice Department disputed how Cannon entered the controversy in the first place, arguing that the judge did not have the authority to interfere with prosecutors’ review of the documents.   

  The dispute in the 11th Circuit is developing as the court-appointed special teacher, Brooklyn-based Senior Judge Raymond Dearie, has begun the process for his review.  Later on Tuesday, he will hold the status conference with the parties to discuss the next steps in the process.   

  In a letter to Dearie on Monday night, the Trump team resisted explaining at the start of the review which documents Trump allegedly declassified.   

  This story is breaking and will be updated.