Former President Donald Trump’s legal troubles have gotten more complicated following an appeals court shutting down a special master days after Attorney General Merrick Garland appointed a special counsel.
An appeals court sided with the Justice Department on Thursday in reversing a district court appointment of a special master in the DOJ’s Mar-a-Lago investigation on Thursday following Garland’s decision last week to put special counsel Jack Smith in charge of that DOJ inquiry as well as the one related to Trump and the events of Jan. 6, 2021.
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End of the special master
The U.S. Court of Appeals for the 11th Circuit sided with the Justice Department’s appeal of the special master selection on Thursday, writing, “In considering these arguments, we are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents. We choose the first option. So the case must be dismissed.”
U.S. District Judge Aileen Cannon had appointed Judge Raymond Dearie in September to serve as special master and to review independently the thousands of records seized from Trump’s Florida resort home during an unprecedented FBI raid in August.
The appeals court judges who made the final decision to toss the special master are Trump appointees Britt Grant and Andrew Brasher, who had previously sided with the Justice Department against the former president in another special master ruling in September, and William Pryor, an appointee of former President George W. Bush.
Grant and Brasher, as well as Obama appointee Robin Rosenbaum, unanimously sided with the DOJ in September when they agreed that Cannon had “likely erred” in her ruling pausing the DOJ’s criminal investigation and when she had required prosecutors to allow Dearie to scrutinize independently the roughly 100 documents with classified markings that had been seized from Mar-a-Lago.
Grant, Brasher, and Pryor tossed the special master entirely on Thursday. The Trump team could appeal the decision to the full appeals court or up to the Supreme Court, though it seems unlikely they would take it up or that the former president would fare better in those venues.
Rise of the special counsel
Jack Smith, an Obama DOJ veteran who until recently was working as a war crimes prosecutor at The Hague, was picked by Garland last week to handle the Justice Department’s investigations related to the Capitol riot and Mar-a-Lago and will “prosecute any federal crimes that may arise from those investigations.”
Smith served as head of the DOJ’s Public Integrity Unit from 2010 to 2015 and at Weissmann, where he led a team of 30 prosecutors in conducting public corruption cases throughout the United States, including a mixed track record of going after high-profile politicians.
Over the weekend, Trump shared a Washington Examiner article detailing Smith’s connection to the Lois Lerner IRS scandal targeting conservative nonprofit groups during the Obama years.
Republicans led by Trump have been renewing their calls for Garland to appoint a special counsel to look into President Joe Biden’s son Hunter following his move to appoint one to investigate the former president.
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The Mar-a-Lago investigation
The FBI conducted an unprecedented raid against Mar-a-Lago in August as part of its broader criminal inquiry into records the former president had taken with him from the White House.
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 warrant 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.
The National Archives and Records Administration came into possession of 15 boxes of records transferred from Mar-a-Lago in January, and the National Archives and the DOJ continued seeking more records up until the raid.
The archivist said Biden and the White House were made aware of the situation as the FBI sought access to the records ahead of the raid.
Garland said in August that he “personally approved the decision to seek a search warrant in this matter.”
Kash Patel, a Trump ally and former administration defense official, was reportedly granted limited immunity and questioned in front of the grand jury.
Trump contends he declassified the records before leaving office, and Patel has said he was present when the former president did so.
The Jan. 6 investigation
The Electoral College members cast their votes on Dec. 14, 2020, with now-President Joe Biden receiving 306 while Trump got 232. The vote was certified by a congressional session presided over by then-Vice President Mike Pence, which finished hours after being disrupted by the Capitol riot.
The FBI conducted a June search of the home of Jeffrey Clark, a former Trump DOJ official who joined in Trump’s efforts to reverse the election results. The former president considered making Clark his attorney general after the election, but other top DOJ officials threatened resignation if he did so.
The bureau also seized a cellphone belonging to Trump supporter lawyer John Eastman in June. Eastman unsuccessfully pushed for Pence to use his vice presidential position as president of the Senate to refuse to certify Biden’s victory over Trump.
In reference to Trump and Eastman, a California federal judge contended in March that it was “more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.”
Trump wanted Pence to cite “dueling” electors from GOP states and to reject certifying Biden’s win, which Pence refused to do.
The “alternate” elector certificates were signed by Republicans in Georgia, Arizona, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin in December 2020 and sent to the National Archives. Many of the groups contended this was done contingent on Trump winning his lawsuits related to their states and on them being recognized as rightful replacement electors. That never happened.
Trump did not win any of the lawsuits he would’ve needed to for the scheme to work, and no state legislatures went along with it.
The DOJ said this month that roughly 900 people have been arrested related to the Capitol riot, including more than 275 defendants charged with assaulting or impeding law enforcement.
Earlier this week, a jury found Oath Keepers founder Stewart Rhodes and Florida chapter leader Kelly Meggs guilty of seditious conspiracy for their roles in the Capitol riot, while the three other Oath Keepers on trial, Kenneth Harrelson, Jessica Watkins, and Thomas Caldwell, were found not guilty of seditious conspiracy in a split verdict. All five were found guilty on at least some felony charges.
Members of the Proud Boys have also been hit with seditious conspiracy charges.
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The Peach State investigation
Fulton County investigators led by District Attorney Fani Willis initiated a Georgia inquiry last year following audio that surfaced of an early January 2021 call between Trump and Georgia Secretary of State Brad Raffensperger in which Trump said “I just want to find 11,780 votes” in the Peach State, the alleged figure needed to reverse his loss to Biden.
A special grand jury was impaneled back in May to assist in the inquiry. Fulton County investigators have subpoenaed a number of high-profile witnesses for testimony.
Ex-Trump lawyer Rudy Giuliani and Sen. Lindsey Graham (R-SC) are among those who have been subpoenaed and given testimony in the Fulton County investigation.
Willis moved to subpoena former Trump chief of staff Mark Meadows back in August, but Meadows quickly waged a court battle in response. A county-level court ruled he was a “necessary and material” witness who would need to comply with the subpoena in October, but Meadows appealed.
The South Carolina Supreme Court ruled this week that Meadows must testify.
