- Government lawyers said Trump hadn’t challenged lawfulness of search or described harm from probe.
- Trump’s lawyers had argued he deserved consideration as a former president investigated by a rival.
- The special master, U.S. District Judge Raymond Dearie, was set to complete his review by Dec. 16.
A federal appeals panel Thursday overturned the order creating a third-party special master to review 11,000 documents seized at Mar-a-Lago, clearing investigators to use the records in the criminal investigation of former President Donald Trump.
“The law is clear,” the three-judge panel of the 11th U.S. Circuit Court of Appeals ruled. “We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.”
The judges had told Trump’s lawyers during oral arguments that the traditional way to challenge what becomes part of an investigation through a government seizure is to challenge the evidence after charges have been filed, which they have not. Judges said challenging the seizure at this point would only be allowed in response to the callous disregard for constitutional rights, which Trump never alleged.
“Our precedents consistently reject this approach,” the panel ruled.
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Absent a stay from another appeal, the decision will go into effect in seven days. Trump could potentially appeal to the Supreme Court.
The special master, U.S. District Judge Raymond Dearie, had expected to complete his review by Dec. 16. But the department appealed the order that created his assignment because he could have potentially blocked access to documents as part of the criminal investigation.
The decision came less than two weeks after Attorney General Merrick Garland appointed Jack Smith as a special counsel to oversee the investigation into Trump’s efforts to overturn the 2020 election and his unauthorized transfer of classified documents to Mar-a-Lago after he left the White House.
A spokesperson for the special counsel declined comment
Trump’s lawyers won approval of the special master in U.S. District Court because of arguments the 11,000 documents could contain records that are personal or fall under attorney-client or executive privilege.
But Justice Department lawyer argued the special master review was unwarranted and the time to challenge seized evidence is after criminal charges are filed. Government lawyers, blocked from using non-classified documents in their investigation, appealed to the 11th Circuit.
A previous three-judge panel had already overturned part of U.S. District Judge Aileen Cannon’s order creating the special master by allowing the Justice Department to continue investigating about 100 classified records during the review.
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Trump’s lawyers had filed a motion with Cannon, rather than the judge who issued the search warrant, U.S. Magistrate Judge Bruce Reinhart. Cannon initially saw no reason to hear the case and asked for an explanation.
Trump’s lawyers argued she had “anomalous jurisdiction” to consider his case – without citing court precedents – and she took it. But The appeals judges ruled that Cannon had no jurisdiction to hear Trump’s case.
“Now, with the benefit of oral argument, we conclude that the district court lacked jurisdiction to consider Plaintiff’s initial motion or to issue any orders in response to it,” the appeals panel ruled.
“Only the narrowest of circumstances permit a district court to” consider such a case, the panel added.
During oral arguments last month, the three-judge panel questioned whether Trump sought special treatment in the case and whether other targets of investigations would also seek special masters to review their searches.
The panel of Chief Judge William Pryor and Judges Britt Grant and Andrew Brasher also questioned why Trump hadn’t challenged the lawfulness of the search.
James Trusty, one of Trump’s lawyers, told the judges he wasn’t trying to open the floodgates for all targets of investigations to get special masters. But he said Trump deserved consideration as a former president who was being investigated by the administration of a political rival.
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Trusty said Dearie was still considering whether about 930 disputed documents are personal or fall under claims of executive privilege.
Sopan Joshi, a lawyer in the Solicitor General’s office, said Tuesday that Trump had shown no need for the documents, but that he already has copies of all but about 100 classified records. Joshi also said Trump made no argument the search authorized by a neutral federal magistrate was unlawful.
“What he wants is to prevent the government from using the documents,” Joshi said.
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