Court halts specialist review of Trump probe

An end to an independent review of documents seized from former President Donald Trump’s Florida estate was put in place by a unanimous federal appeals court on Thursday. This removed a hurdle the Justice Department said had delayed its criminal investigation into the retention of top-secret government information.
A significant win for federal prosecutors, the decision by the three-judge panel clears the way for the entire tranche of documents seized during an Aug. 8 FBI search of Mar-a-Lago to be used as part of their investigation. This also sharply contradicts Trump’s lawyers’ arguments from months ago, who said that Trump was entitled to have a so-called “special master” review the thousands of documents taken from the property.
Given the skeptical questions the judges directed at a Trump lawyer during arguments last week, and because two of the three judges on the panel had already ruled in favor of the Justice Department in an earlier dispute over the special master, the ruling from the Atlanta-based U.S. Court of Appeals for the 11th Circuit had been expected.
The panel of Republican appointees, including two who were selected by Trump, unanimously agreed on the decision. The court rejected each argument by Trump and his attorneys for why a special master was necessary, including claims that various seized records were protected by attorney-client privilege or executive privilege.
“Although it is extraordinary for a warrant to be executed at the home of a former president, this does not affect our legal analysis or give the judiciary license to interfere in an ongoing investigation,” the judges wrote.
“Thursday’s decision was purely procedural and did not address the ‘impropriety’ of the raid,” a Trump spokesperson said, adding that the ex-president would “continue to fight” against the Justice Department. When asked if they would appeal the ruling, lawyers for Trump did not immediately respond.
An ongoing investigation examining the potential criminal mishandling of national defense information as well as efforts to possibly obstruct the documents probe has played out alongside the special master litigation. Last month, Attorney General Merrick Garland appointed Jack Smith, a veteran public corruption prosecutor, to serve as special counsel overseeing that investigation.
The investigation’s longevity and possible charges remain unclear. Although the probe has been intensifying, with investigators questioning multiple Trump associates about the documents and granting one key ally immunity to ensure his testimony before a federal grand jury, it has not been yielding many results. The appeals court decision is likely to speed the investigation along by cutting short the outside review of the records.
Just weeks after the FBI’s search, Trump sued in federal court in Florida seeking the appointment of an independent arbiter to review the roughly 13,000 documents the Justice Department says were taken from the home, the conflict over the special master began.
Judge Aileen Cannon granted the Trump team’s request, naming veteran Brooklyn judge Raymond Dearie to serve as special master. His task is to review the seized records and filter out any documents that might be covered by claims of executive privilege or attorney-client privilege from the criminal investigation.
Pending the completion of Dearie’s work, she also barred the Justice Department from using any of the seized records in its criminal investigation, including the roughly 100 with classification markings.
The Justice Department objected to the appointment, saying that Trump had no credible basis to invoke either attorney-client privilege or executive privilege to shield the records from investigators and that the appointment was an unnecessary hindrance to its criminal investigation.
The first step it sought was to regain access to the classified documents. In September, a federal appeals panel sided with prosecutors, permitting the Justice Department to resume its review of documents with classification markings. Two of the Trump-appointed judges on that panel, Andrew Brasher and Britt Grant, were part of Thursday’s ruling as well.
The department also pressed for unfettered access to the much larger trove of unclassified documents, saying such records could contain important evidence for their investigation.
The appeals court ruled that Cannon should dismiss the lawsuit that gave rise to Dearie’s appointment, and suggested that Trump had no legal basis to challenge the search in the first place.
It is clear that the law exists. It is not possible to write a rule that would enable the subject of a search warrant to impede government investigations after the warrant has been carried out. The judges wrote that we cannot write a rule that only allows former presidents to do so.
They added that either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. Both actions would violate bedrock separation-of-powers limitations.