An appeals court granted the Department of Justice‘s request for a partial stay of a lower court order, now allowing the DOJ to continue its criminal investigation using allegedly classified documents the FBI seized from former President Donald Trump’s Mar-a-Lago home.
The three-judge panel’s decision was a win for the DOJ, with the appeals court also reversing Judge Aileen Cannon’s determination that the DOJ would have to provide roughly 100 documents with classified markings to a special master for independent review.
“We decide only the narrow question presented: whether the United States has established that it is entitled to a stay of the district court’s order, to the extent that it (1) requires the government to submit for the special master’s review the documents with classification markings and (2) enjoins the United States from using that subset of documents in a criminal investigation,” the three judges on the 11th U.S. Circuit Court of Appeals wrote Wednesday evening. “We conclude that it has.”
Cannon, a district court judge in Florida who appointed Judge Raymond Dearie to be special master earlier this month, ruled 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.”
Her ruling “shall not impede” the classification review and intelligence assessment being conducted by the Office of the Director of National Intelligence related to the records seized in the unprecedented August raid, she said in the order.
DOJ INCREASES PRESSURE ON TRUMP TO PROVE DECLASSIFICATION CLAIMS
But the DOJ, which quickly appealed the order to the 11th Circuit, claimed that pausing the FBI’s criminal investigation while separately continuing the ODNI‘s damage assessment was essentially impossible.
“The Intelligence Community’s review and assessment cannot be readily segregated from the Department of Justice’s and Federal Bureau of Investigation’s activities in connection with the ongoing criminal investigation, and uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI has caused the Intelligence Community, in consultation with DOJ, to pause temporarily this critically important work,” the DOJ argued this month. “Moreover, the government and the public are irreparably injured when a criminal investigation of matters involving risks to national security is enjoined.”
The circuit judges who unanimously sided with the DOJ, Obama-appointee Robin Rosenbaum and Trump appointees Britt Grant and Andrew Brasher, agreed with the DOJ that Cannon had “likely erred” in her ruling pausing the DOJ’s criminal investigation and required prosecutors to allow Dearie to scrutinize the 100 documents with classified markings independently.
Trump and some allies have argued that the former president declassified the documents at his Florida home when it was raided, but the DOJ has repeatedly pointed out that declassification claims have not made it into Trump’s legal filings, telling the appeals court this week that Trump “conspicuously fails to represent, much less show, that he actually took that step.”
Dearie, who was picked to be the special master last week after he was put forward by Trump, suggested to the former president’s lawyers during a Tuesday hearing that Trump must provide evidence of declassification or else the judge may have to assume the records seized by the FBI are indeed classified.
Trump’s attorneys told Dearie they are hesitant about detailing what Trump may have declassified because that topic might end up being part of their defense against a future indictment by the DOJ.
Jim Trusty, a lawyer for the former president, argued that “we are not in a position — nor should we be in a position at this juncture — to fully disclose a substantive defense.” Dearie replied: “My view of it is: You can’t have your cake and eat it.”
The appeals court panel seemed to agree with Dearie’s skepticism of Trump’s arguments.
“[Trump] has not even attempted to show that he has a need to know the information contained in the classified documents,” the circuit judges said in their lengthy Wednesday opinion. “Nor has he established that the current administration has waived that requirement for these documents. And even if he had, that, in and of itself, would not explain why [Trump] has an individual interest in the classified documents.”
The appeals court added: “[Trump] suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, [Trump] resisted providing any evidence that he had declassified any of these documents.”
The circuit judges also echoed the DOJ’s stance that Trump’s declassification claims were a “red herring.”
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Trump’s legal team had unsuccessfully sought to keep the appeals court out of it.
“This investigation of the 45th President of the United States is both unprecedented and misguided,” Trump’s lawyers argued to the circuit judges on Tuesday. “In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records.”
Trump’s team had argued that the appeals court “should, respectfully, decline the Government’s invitation to proceed directly toward a preordained conclusion.”
