A three-judge panel on an Atlanta-based appeals court appeared skeptical Tuesday of former President Donald Trump‘s efforts to maintain a special master overseeing the Department of Justice’s investigation into sensitive documents seized from his Mar-a-Lago estate.
The slate of judges, including two appointed by Trump during his term in office, appeared poised to conclude that U.S. District Judge Aileen Cannon erred on two fronts: first by granting Trump’s request for an independent arbiter to determine if some documents are legally protected and then ordering around 100 classified documents to be shielded from investigators until such claims are litigated.
The hearing took place in the U.S. Court of Appeals for the 11th Circuit and lasted roughly a half-hour. It also marked the first courtroom exchange between Trump’s team and federal prosecutors since the DOJ appointed public corruption and war crimes prosecutor Jack Smith to serve as special counsel over the documents investigation.
TRUMP MAKES LAST-DITCH REQUEST BEFORE APPEALS COURT DECIDES FUTURE OF SPECIAL MASTER
Although Trump has characterized the search of his estate as a type of “witch hunt” by the Justice Department, Chief Judge William Pryor Jr. suggested that Trump received accommodations in the documents case that are hardly ever granted to criminal suspects before charges are filed.
“Has there ever been an exercise of this kind of jurisdiction where there’s no showing that the seizure itself was unlawful?” Pryor, an appointee of President George W. Bush, asked. Attorneys for Trump did not offer a specific example.
Judge Britt Grant, a Trump appointee, also said the former president “hasn’t really made much of an effort to show specific need.”
Throughout the hearing, Trump attorney James Trusty faced strict questions from the judges, including one over Trusty referring to the search of Trump’s Florida home as a “raid.”
“Do you think that ‘raid’ is the right term for execution of a warrant?” Grant asked.
Trusty apologized, then received another rebuke later from Pryor for referring to the document authorizing the search and seizure at Mar-a-Lago as a “general warrant.”
“You didn’t establish that it was a general warrant,” Pryor noted.
The rough exchanges on Tuesday encapsulated the hurdles Trump’s team has faced at the 11th Circuit, which previously overruled a portion of Cannon’s order preventing the DOJ from using nearly 100 classified documents in the investigation into Trump.
The FBI seized thousands of documents from Trump’s estate in August and deemed more than 100 were classified up to top secret during the search. The documents are now back in the hands of the government and Senior U.S. District Judge Raymond Dearie, who is leading the special master review and overseeing the classified documents for executive privilege protections.
Before the hearing, Trump’s legal team filed a last-ditch request to Cannon, asking her to unseal the affidavit that accompanied the search warrant at his estate.
Trump’s counsel argued in the 12-page filing that due to the several investigations into the former president, lawyers are concerned that prosecutors might send some of the seized documents to officials investigating other matters.
“With DOJ and some state officials engaging in various efforts to investigate President Trump, the search smacks of pretextual conduct with hopes of feeding personal documents to prosecutors or agents who might find use for them in unrelated pursuits,” Trump’s attorneys wrote, with a signature by attorney Lindsey Halligan.
The most recent filing to Cannon referenced her previous rulings and quotes in which she criticized prosecutors for alleged leaks and contended with some of Trump’s legal positions. But if the government is successful with its appeal on Tuesday, Dearie’s role as special master would come to an end.
Although Smith was named last week to oversee the team investigating the dozens of various classified government records found at Trump’s estate and possible obstruction of justice in the inquiry, he was not present at Tuesday’s arguments.
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Smith was recently involved in a bike accident in the Netherlands, where he has been stationed to prosecute war crimes cases in Hague and Kosovo, according to officials. He must undergo knee surgery and is handling his assignment remotely. He is expected to return to the United States soon, according to the DOJ.
The Justice Department submitted a filing to the appeals court Monday on behalf of Smith, telling the court that he approves of the arguments that would be discussed and presented at Tuesday’s oral argument period.
