Appeals court appears poised to overturn special master appointment in Mar-a-Lago documents case

It's the first legal battle since a special counsel took over the investigation.

November 22, 2022, 4:14 PM

A federal appeals court on Tuesday seemed poised to grant a Justice Department request to rescind the appointment of a special master in the investigation into the handling of classified material seized in August from former President Trump's Mar-a-Lago estate in Florida.

In a hearing Tuesday afternoon, a three-judge panel from the 11th U.S. Circuit Court of Appeals questioned an assertion from Trump's attorney that "this is an extraordinary case" that warranted intervention from an outside arbiter to review all the materials seized in the August search.

"Other than the fact that this involves a former president, everything else about this is indistinguishable from any pre-indictment search warrant," Judge Andrew Brasher said.

The attorney for Trump, Jim Trusty, insisted Trump was looking for no special treatment but asked the court to consider "a political rival has been subjected to a search warrant where thousands of personal materials have been taken."

Arguing for the Justice Department, Sopan Joshi of the Solicitor General's office called the appointment of a special master by a district court judge an "extraordinary judicial intrusion into a core executive branch function."

The judges pressed Joshi and Trusty as to whether there was any similar case where a judge has exercised such jurisdiction to intervene in an ongoing criminal investigation prior to indictment with any showing of "callous disregard" for the rights of the potential defendant.

Neither could name such a case, but Trusty suggested that by having the process play out they could perhaps find evidence that Trump's rights were violated.

Trusty also sought to take issue with how agents conducted the search, noting that in addition to presidential records and documents with classification markings they also seized items like "golf shirts and pictures of Celine Dion" which he said should have no relevance to their criminal investigation.

But Chief Judge Bill Pryor noted it wasn't unusual for such personal items to be swept up in a court-authorized search.

"I don't think it's necessarily the fault of the government. If, if someone has intermingled classified documents in all kinds of other personal property," Pryor said.

DOJ is urging the appeals court to overturn special master Raymond Dearie's appointment and have the roughly 13,000 documents returned to investigators examining whether Trump unlawfully retained highly sensitive documents involving national defense information after leaving the presidency, and potentially obstructed justice in resisting the government's efforts to retrieve them.

The appeals court previously granted a request from DOJ to stay portions of a ruling by U.S. District Judge Aileen Cannon that had blocked the government from using roughly 100 documents with classification markings recovered from Mar-a-Lago in its investigation and demanded they be handed over to special master Dearie.

FBI photograph of redacted documents and classified cover sheets recovered from a container stored in former U.S. president Donald Trump's Florida estate that was included in a U.S. Department of Justice filing, Aug. 30, 2022.
U.S. Department Of Justice

The Justice Department then moved for an expedited appeal to end Dearie's review in its entirety, saying its inability to access the non-classified documents seized from Mar-a-Lago was also significantly hampering its ongoing criminal investigation.

It was the first in-person meeting between top department officials and Trump's legal team since Attorney General Merrick Garland announced the appointment of special counsel Jack Smith last Friday, which Garland said was warranted in part because of Trump's announcement he would again run for president in 2024.

Smith has been tasked with overseeing the continuing criminal investigation of classified records seized from Trump's estate in August as well as the separate probe into efforts by Trump and his allies to overturn his election loss to President Joe Biden.

In a filing Monday afternoon, the Justice Department formally notified the court of Smith's appointment and stated he had reviewed the filings in DOJ's case and that he "approves all of the arguments that have been presented in the briefs and will be discussed at the oral argument."

Last week, officials said Smith was preparing to make his return to the U.S. from the Netherlands where he was serving as a chief prosecutor of war crimes at the Hague.

In this Aug. 24, 2010, file photo, Jack Smith, the Department of Justice's chief of the Public Integrity Section, poses for a photo at the Department of Justice in Washington, D.C.
Charles Dharapak/AP, FILE

In a filing last week, officials from the department accused Trump and his legal team of engaging in "gamesmanship" in their fight to retain the roughly 13,000 documents in Dearie's possession by asserting that when he ordered the packing of materials in the White House that were then transported to Mar-a-Lago, they were in effect automatically designated as his own "personal" records.

But at the same time, his attorneys said if Dearie rejected that argument for certain documents, they should have the opportunity to claim they are covered by executive privilege and should be shielded from the government.

They argued Trump's legal team has put forward a "sweeping and baseless theory" to support their claims over the documents under a reading of the Presidential Records Act, saying Trump "appears to be claiming that he can unilaterally 'deem' otherwise Presidential records to be personal records by fiat."

And even if Trump were correct in his claims, DOJ says, it would amount to a "red herring" regarding their right to access the documents as part of their ongoing criminal investigation.

"Documents commingled or collectively stored with the classified materials located at Plaintiff's premises were lawfully seized by the FBI in accordance with the terms of the court-authorized search warrant because of their relevance to the government's ongoing investigation," top DOJ counterintelligence official Jay Bratt said. "That relevance exists irrespective of whether they were personal papers or government records. In the absence of a valid and substantiated claim of privilege, all such documents must now be made available to the investigative team."

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