The U.S. Court of Appeals for the 11th Circuit on Tuesday appeared inclined to agree with the Justice Department to potentially limit a special master review of documents seized by the FBI from Donald Trump’s Mar-a-Lago residence for potential privilege protection.
The outcome of the hearing is consequential for Trump: If he loses, it could mark the end of a special impeachment trial he has relied on to delay and gain more insight into the investigation into his potential mishandling of national security information.
The three-judge panel — led by Chief Appellate Judge William Pryor — did not rule from the bench in Atlanta, Georgia, but appeared skeptical that Trump should receive special treatment and could undermine the criminal investigation because of his criminal status. former president.
Trump began the afternoon hearing by pointing out that two other judges on the panel, Britt Grant and Andrew Brasher, had previously said in a related appeal that U.S. Magistrate Judge Aileen Cannon, a Trump appointee, “abused her discretion” by appointing a special master, who reviews materials seized by the FBI.
The fundamental question, Pryor told the court, was whether it was appropriate for the judiciary to interfere in an executive branch investigation, absent some extraordinary circumstances.
Pryor asked Trump’s attorney, Jim Trusty, if he thought the FBI’s seizure of documents from Mar-a-Lago was potentially illegal and, if the seizure was not, whether they had found any other cases where the target of a search warrant had obtained a restraining order.
“It’s got to be extraordinary,” Pryor said, adding that there doesn’t seem to be anything unusual about this case other than the fact that Trump is a former president.
Trusty argued that Trump’s status as a former president made the case extraordinary and warranted the appointment of a special master, and suggested that Trump’s legal team at least suspected the seizure was potentially illegal.
But Pryor seemed unconvinced, exclaiming, “If you can’t establish that, what are we even doing here?”
The department also argued at the hearing that the 11th Circuit should lift an injunction barring federal investigators from reviewing documents reviewed by the special master, because Cannon misapplied the four-part Richey test used in her ruling.
The original rationale for the special master is disputed. Cannon found that Trump failed to meet Richey’s first test — whether he suffered a “callous disregard” of his constitutional rights when the FBI searched Mar-a-Lago — but granted Trump’s request because she felt he passed additional tests.
The department — echoing the 11th Circuit’s reasoning in an earlier appeal — said Trump’s failure to meet the callous disregard standard should have alone resulted in the claim being dismissed, though the former president’s legal team disputed that interpretation.
But even if Cannon properly applied Richey, the department argued, she erred in preventing him from accessing the materials under review.
The ban was imposed on the grounds that if Trump was able to show that some of the documents were protected by executive confidentiality or attorney-client privilege, then they could not be part of hidden evidence obtained by federal investigators in a criminal prosecution.
Still, during the special case-in-chief, the Department noted, Trump’s lawyers argued that the documents were not so much privileged as personal. If that were true, the problem for Trump is that they would be legally seized in an FBI search.
Trump requested the appointment of a special master to examine the documents seized at Mar-a-Lago — including 103 classified — shortly after the Aug. 8 search because, his lawyers argued at the time, some of the materials could be classified. protection.
The request was granted by Cannon, who showed extreme deference to Trump because of his status as a former president by ruling that he met the four-part Richey test, and temporarily barred the department from using the seized materials in its criminal investigation.
But the department appealed part of Cannon’s order to the 11th Circuit, which sided with the government and ordered that 103 documents marked classified be excluded from the special master review and returned to investigators, criticizing Cannon for authorizing the review in the first place.
That prompted Trump to appeal unsuccessfully to the Supreme Court — while the Department then appealed the entire special executive order, including the 11th Circuit’s rulings and his scathing rebuke of Cannon for “abusing her discretion” in court filings.
“This court has already granted the government’s request to stay that unprecedented order to the extent it applies to classified documents,” the ministry wrote in an October filing. “The court should now set aside the order in its entirety for a number of independent reasons.”