As former President Donald Trump faces the new reality of a special counsel leading Justice Department investigations into his conduct, a federal appeals court will hear arguments on Tuesday about whether it should remove what was was a notable obstacle in one of the investigations.
The 11th U.S. Circuit Court of Appeals will consider a lower court’s requirement that a special master review documents seized by the FBI from Trump’s Mar-a-Lago home and resort in August .
A Florida-based judge’s decision to appoint a third party to help decide which of the roughly 22,000 pages of documents obtained in the search belong to investigators – threw a major wrench in the Justice Department’s criminal investigation into whether Trump’s White House records have been mishandled.
Prosecutors are investigating whether there has been obstruction of justice, criminal handling of government records and violations of the Espionage Act, which prohibits the unauthorized storage of national defense information.
The Justice Department has already obtained a debarment from the 11th Circuit allowing it to continue its investigation of the documents marked as classified.
Now the Justice Department is asking to dismiss the entire special principal review, which is being led by Raymond Dearie.
An appeals court ruling removing the special lead review of Mar-a-Lago documents would quicken the pace of the government documents probe, which is in some ways the simplest of the various investigations surrounding the former president. and candidate of 2024.
Special Counsel Jack Smith is now overseeing the Mar-a-Lago investigation and the investigation into Trump’s post-2020 election efforts to reverse his electoral defeat. Smith is not expected to attend Tuesday’s hearing.
Sitting on the panel Tuesday, announced after a draw, are Chief Justice William Pryor, Justice Britt Grant and Justice Andrew Brasher, a court official told CNN.
Grant and Brasher, both Trump appointees, were on the panel that granted the DOJ’s request in September to be allowed to resume its criminal investigation into the approximately 100 documents marked as classified that the FBI obtained during the search.
Pryor is a George W. Bush appointee.
In the September decision signed by Grant and Brasher regarding the classified documents, the appeals court questioned the legal basis used by the lower court judge to appoint the special master.
Because the lower court found no “callous disregard” for Trump’s constitutional rights in the research, the 11th Circuit then wrote, that is “sufficient reason to find that the district court abused its power. discretion in exercising equitable jurisdiction here”.
US District Judge Aileen Cannon’s ruling — who sits in federal court in Ft. Pierce, Fla. — on the appointment of a special master has drawn criticism from a wide range of legal experts.
When the 11th Circuit in September excluded documents marked as classified from review, the three-judge panel suggested that the entire appointment of a special master was based on a legally flawed premise. However, it will be a new panel – chosen at random – that will hear the DOJ’s appeal on Tuesday, creating the possibility that the former president will attract judges sympathetic to his claims.
Trump asked for the special master because he said there was a risk that documents by attorney-client privilege or executive privilege would be swept up in the search. In his arguments with the appeals court, however, he focuses on a theory that he had the ability to designate the bulk of White House documents as personal. Therefore, Trump argues, the Justice Department has no right to conduct a criminal investigation into how the documents were handled.
“President Trump has a clear interest in his own personal (and even presidential) records, and the District Court acted at his discretion in recognizing that a neutral party was necessary to facilitate the decision on the legal status of the documents,” he said. said his attorney in a writ with the appeals court.
The Justice Department told the 11th Circuit that Trump’s new theory was “baseless,” “totally irrelevant,” and an argument the appeals court shouldn’t even consider. Prosecutors argue that there was no justification for requiring the review and that the special lead process, by preventing investigators from using the documents in their investigation, is causing undue harm to the public interest in the investigation. prompt administration of criminal law.
Cannon appointed Dearie, a senior judge who sits in federal court in Brooklyn, to handle the third-party review. Dearie indicated he would like to act quickly and showed little patience for Trump’s team delaying tactics. However, Cannon has occasionally stepped in to tweak his plans, including delaying the exam’s end date until at least mid-December. At that point, Dearie will submit a report to Cannon with her recommendations for who should prevail in disputes between Trump and prosecutors over whether certain documents can be used in the investigation, but Cannon will have the final call.
The Justice Department has already returned to Trump a selection of documents that were either legal in nature or non-government records containing sensitive personal information, such as medical records. At stake now are the more than 2,800 documents obtained in the search that Trump is fighting to keep out of the hands of investigators.
This story has been updated with additional details.