An appeals court has set oral arguments for Thanksgiving week in the Justice Department’s efforts to appeal a district court ruling granting former President Donald Trump a special master in the Mar-a-Lago raid saga.
U.S. District Judge Aileen Cannon appointed Judge Raymond Dearie to serve as special master and to review independently the thousands of records seized from Trump’s Florida resort home during the FBI raid in August, but the Justice Department appealed that appointment. The U.S. Court of Appeals for the 11th Circuit has now directed the DOJ and Trump’s lawyers to appear in Atlanta next Tuesday to debate the issue.
“This appeal stems from an unprecedented order by the district court restricting an ongoing criminal investigation by prohibiting the Executive Branch from reviewing and using evidence — including highly classified government records — recovered in a court-authorized search,” the Justice Department argued during its appeal of the special master order in October.
Federal prosecutors argued to the appeals court judges that “district courts have no general equitable authority to superintend federal criminal investigations” but that “here, however, the district court granted the extraordinary relief [Trump] sought, enjoining further review or use of any seized materials, including those bearing classification markings, ‘for criminal investigative purposes’ pending a special-master review process that will last months.”
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The Justice Department noted then that the appeals court “has already granted the government’s motion to stay that unprecedented order insofar as it relates to the documents bearing classification markings” but called on the higher court now to reverse the special master order “in its entirety.”
Prosecutors argued that Cannon “erred in ordering a special-master review for claims of executive and attorney-client privilege and enjoining the government’s use of the seized records in the meantime.”
The appeals court has already granted the Justice Department’s request for a partial stay of Cannon’s lower court order, allowing the DOJ to continue its criminal investigation using allegedly classified documents the FBI seized. The three-judge panel’s decision was a win for the DOJ, with the appeals court also reversing Cannon’s determination that the DOJ would have to provide roughly 100 documents with classified markings to the special master for review.
Cannon had ruled in September that she “temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order.”
But the appeals court sided with the DOJ that Cannon had “likely erred” in her ruling pausing the DOJ’s criminal investigation and requiring prosecutors to allow Dearie to scrutinize the 100 documents with classified markings independently.
Trump’s legal team has sought to defend the special master order.
“This investigation of President Trump by the administration of his political rival is both unprecedented and misguided,” the former president’s legal team argued to the appeals court, adding that “recognizing the exceptional circumstances, President Trump’s interest in the seized materials, the potential irreparable injury, and the lack of any other remedy, the District Court exercised appropriately its equitable jurisdiction.”
Trump’s lawyers added: “Given the significance of this investigation, it must be conducted in a manner that gives the public confidence in its outcome. The Court should simply not allow the Government to cloak these proceedings from public view based on its unverified assertions. The Special Master — and the District Court — should not be inhibited from exercising the jurisdiction afforded to them.”
“The Special Master Order is not appealable and, in any event, the appointment of a special master was not an abuse of discretion,” the former president’s attorneys contended.
Last week, Trump admitted to the special counsel that he took reams of records from the White House to Mar-a-Lago but argued that the records were designated as personal records by him rather than remaining presidential records.
“President Trump was still serving his term in office when the documents at issue were packed, transported, and delivered to his residence in Palm Beach,” Trump’s lawyers argued. “Thus, when he made a designation decision, he was President of the United States; his decision to retain certain records as personal is entitled to deference, and the records in question are thus presumptively personal.”
The Justice Department told the special master that Trump’s legal arguments were nonsense.
“Seeming to recognize that a record cannot both be a ‘personal’ record and be shielded by executive privilege, Plaintiff has indicated in dozens of instances that he asserts executive privilege only if the Special Master rejects his assertion that a document is a ‘personal’ record and determines that it is a Presidential record,” DOJ said. “The Special Master should not indulge this type of gamesmanship. … That is a shell game.”
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The search warrant application cover sheet, unsealed in late August, provided more details on what the DOJ was looking for on Aug. 8, when it searched Trump’s Florida resort. The records showed Trump was being investigated under 18 U.S.C. 793, part of the Espionage Act, and said it was related to “willful retention of national defense information.” The record also pointed to 18 U.S.C. 2071, specifically the “concealment or removal” of government records, as well as 18 U.S.C. 1519, specifically related to “obstruction” of a federal investigation.
Whether or not the DOJ is considering charging Trump under those or other statutes is not known.
