In another legal blow to Trump, appeals court reverses special master in documents fight

A U.S. federal appeals court on Thursday unanimously ended an independent review of documents seized from former president Donald Trump’s Florida estate, removing a hurdle the Justice Department said had delayed its criminal investigation into the retention of top-secret government information.

The decision by the three-judge panel represents a significant win for federal prosecutors, clearing the way for them to use as part of their investigation the entire tranche of documents seized during an Aug. 8 FBI search of Mar-a-Lago.

It also amounts to a sharp repudiation of arguments by Trump’s lawyers, who for months had said that the former president was entitled to have a so-called “special master” conduct a neutral review of the thousands of documents taken from the property.

The ruling from the Atlanta-based U.S. Court of Appeals for the 11th Circuit had been expected 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 favour of the Justice Department in an earlier dispute over the special master.

The decision was a unanimous opinion from the three-judge panel of Republican appointees, including two who were selected by Trump. In it, the court rejected each argument by Trump and his attorneys for why a special master was necessary, including his claims that the seized records were protected by attorney-client privilege or executive privilege.

“It is indeed extraordinary for a warrant to be executed at the home of a former president — but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation,” the judges wrote.

Trump is likely to appeal the 11th Circuit’s decision to the conservative-majority U.S. Supreme Court. The 11th Circuit said its order will not take effect for seven days, during which Trump could seek to challenge it.

A Trump spokesperson called the decision “purely procedural and based only on jurisdiction,” and said it did not address the merits of the case.

Trump “will continue to fight against the weaponized Department of ‘Justice,’ while standing for America and Americans,” the spokesperson added.

In October, the U.S. Supreme Court rejected Trump’s effort to get the high court to hear an emergency appeal related to the search. 

Separate ongoing case

The special master litigation has played out alongside an ongoing investigation examining the potential criminal mishandling of national defence information as well as efforts to possibly obstruct that probe. U.S. Attorney General Merrick Garland last month appointed Jack Smith, a veteran public corruption prosecutor, to serve as special counsel overseeing that investigation.

It remains unclear how much longer the investigation will last, or who, if anyone, might be charged. But the probe has shown signs of 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. And the appeals court decision is likely to speed the investigation along by cutting short the outside review of the records.

The conflict over the special master began just weeks after the FBI’s search, when 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.

A federal judge, Aileen Cannon, granted the Trump team’s request, naming veteran Brooklyn judge Raymond Dearie to serve as special master and tasking him with reviewing the seized records and filtering out from the criminal investigation any documents that might be covered by claims of executive privilege or attorney-client privilege.

She also barred the Justice Department from using in its criminal investigation any of the seized records, including the roughly 100 with classification markings, until Dearie completed his work.

The Justice Department objected to the appointment, saying it was an unnecessary hindrance to its criminal investigation and saying Trump had no credible basis to invoke either attorney-client privilege or executive privilege to shield the records from investigators.

It sought, as a first step, to regain access to the classified documents. A federal appeals panel sided with prosecutors in September, permitting the Justice Department to resume its review of the documents with classification markings. Two of the judges on that panel — Andrew Brasher and Britt Grant, both Trump appointees — were part of Thursday’s ruling as well.

The department also pressed for access to the much larger trove of unclassified documents, saying such records could contain important evidence for their investigation.

In its ruling Thursday, the court directed Cannon to dismiss the lawsuit that gave rise to Dearie’s appointment and suggested Trump had no legal basis to challenge the search in the first place.

“The law is clear. 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 wrote.

“Either approach,” they added, “would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations.”