Appeals court says FBI can use all documents seized in Mar-a-Lago search and ends special master review

The ruling means the criminal investigation into whether Mr Trump unlawfully possessed national defence information can proceed without further hinderance

Andrew Feinberg
Washington, DC
Thursday 01 December 2022 23:37 GMT
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A three-judge panel of the US Court of Appeals for the 11th Circuit has reversed a Florida federal judge’s ruling that has prohibited the FBI from using nearly all documents seized during the 8 August search of former president Donald Trump’s Mar-a-Lago club to further the criminal probe into the ex-president.

In an unsigned opinion, Chief Judge William Pryor and Circuit Judges Andrew Brasher and Britt Grant wrote that Judge Cannon never had the authority to hear a civil case Mr Trump filed with the aim of stopping the use of the documents as the FBI and Justice Department investigated whether he’d violated criminal laws against unlawful retention of national defence information and obstructing justice.

“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,” they wrote. “Either approach 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”.

The court’s ruling comes just over a week after the panel heard arguments in the government’s appeal of Judge Cannon’s September ruling blocking the FBI and Department of Justice from using nearly all of the more than 10,000 government-owned documents that FBI agents had retrieved from the Palm Beach mansion turned private club where Mr Trump maintains his primary residence and official post-presidential office.

Judge Cannon granted the unprecedented ruling after Mr Trump’s attorneys argued that it was necessary to appoint a third-party special master who could review all the documents and determine whether any of them were protected by attorney-client or executive privilege, even though Mr Trump is not an attorney and he has not had the ability to invoke executive privilege against the executive branch since his term as president expired on 20 January 2021.

The 11th Circuit had previously reversed a portion of her ruling with respect to roughly 100 documents which bore classified markings to allow the FBI and US Intelligence Community to conduct an assessment of what damage to national security could have been wrought by Mr Trump’s decision to keep the highly-sensitive materials — some marked classified “top secret” — in an unsecured storage room.

But this latest court decision eviscerates her prior ruling and puts an end to the special master review, which has been overseen by a New York federal judge, Raymond Dearie.

The end of the special master review means the FBI and DOJ can proceed with the criminal probe into Mr Trump, which is now being supervised by a special prosecutor, Jack Smith.

In their 21-page opinion, the judges said Mr Trump had satisfied none of the requirements that would have to have been met before Judge Cannon could have issued an injunction to block the probe in any way, much less appoint a special master to review evidence seized for a criminal investigation pursuant to a lawful search warrant.

They explained that the arguments put forth by Mr Trump’s legal team would have had them essentially rewrite US criminal law in a way that would have allowed any subject of a criminal investigation to intervene and block the government from using lawfully-obtained evidence against them.

“He asks us to ignore our precedents finding that a callous disregard for constitutional rights is indispensable. He asks us to conclude that a property interest in a seized item is a sufficient “need” for its immediate return. He asks us to treat any stigma arising from the government’s access to sensitive personal information or the threat of potential prosecution as irreparable injuries. And he asks us to find that he has no other remedy apart from equitable jurisdiction, even though he faces no remediable harm,” they observed before noting that acceptance of Mr Trump’s arguments would force courts “to oversee routine criminal investigations beyond their constitutionally ascribed role of approving a search warrant based on a showing of probable cause”.

“Our precedents do not allow this, and neither does our constitutional structure,” they wrote, adding that the only remaining possible justification for Judge Cannon’s ruling was Mr Trump’s status as a former president.

But the fact that Mr Trump was once president of the United States could have no bearing on their interpretation of the law, the judges said. Creating a special exception for Mr Trump because of the job he once held “would defy our Nation’s foundational principle that our law applies to all, without regard to numbers, wealth, or rank,” they added.

Because the court agreed with the government’s contention that Judge Cannon had improperly exceeded her authority, the panel granted the Justice Department’s request to order her to toss the case in its’ entirety.

A separate order published approximately 12 minutes after the court’s opinion revealed that the “mandate” associated with the ruling — the formal order directing Judge Cannon to dismiss the case — would be transmitted to Judge Cannon after seven days unless the panel’s ruling is put on hold.

While Mr Trump could appeal the panel’s ruling by asking for the entire 11th Circuit to hear the case or go directly to the Supreme Court, it’s unlikely that either course would be successful.

When the ex-president appealed the prior 11th Circuit decision allowing the FBI to use the classified documents seized from his property, the high court denied the appeal without comment.

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