Appeals Court Appears Likely To Side With DOJ And Shut Down Trump Review

Topline

A panel of appeals court judges signaled Tuesday they’re likely to end a special master’s review of documents the Justice Department seized from former President Donald Trump’s Mar-A-Lago estate, repeatedly challenging the Trump legal team’s arguments and expressing skepticism the president was unfairly targeted by the DOJ with its search.

Former President Donald Trump’s Mar-a-Lago resort on February 11 in Palm Beach, Florida.

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Key Facts

Three judges at the 11th Circuit Court of Appeals—two of whom were appointed by Trump—heard arguments Tuesday after the DOJ appealed a lower court ruling appointing a third-party special master to review the Mar-A-Lago documents for any privileged materials.

The 11th Circuit had already sided with the DOJ in a narrower appeal by ruling classified documents could be excluded from special master and U.S. District Judge Raymond Dearie’s review, but the special master is still going through another 11,000 non-classified documents, which the government also wants to put a stop to.

The judges repeatedly questioned Trump attorney Jim Trusty over whether there was any court precedent to back up the ex-president’s arguments against the Justice Department taking documents from Mar-A-Lago, and Judge Britt Grant noted Trump “hasn’t really made much of an effort” to show he needs access to the documents the DOJ seized.

Judges noted that Trump’s legal argument rests solely on the fact it was a former president whose property was searched, and would otherwise be “virtually indistinguishable” from any other case in which the target of an investigation had their property searched.

Judge William H. Pryor, a George W. Bush appointee, said the court has “to be concerned about the precedent we would create” by ruling in Trump’s favor, because doing so could open the floodgates for any target of a federal investigation to challenge searches against them in court and “interfere” in a federal probe.

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Pryor also disputed Trusty’s argument that a special master was necessary because non-White House documents—including a photo of Celine Dion—were among the items the DOJ seized, noting he doesn’t “think it’s necessarily the fault of the government if someone has intermingled classified documents with all other personal property.”

What To Watch For

Dearie’s special master review is scheduled to conclude by December 16, so the court would need to rule by then to cut the review short, though the DOJ argued Tuesday that it’s likely court proceedings could still stretch on for months after the documents are reviewed if the 11th Circuit doesn’t step in. A ruling in DOJ’s favor would end the special master review and all of the litigation involving it, and mean the government can immediately review non-classified documents that were seized from Mar-A-Lago. It would also not be barred from reviewing materials that Trump’s attorneys argue should be shielded under executive privilege, which was still a matter being debated in court. If the court doesn’t rule entirely in the DOJ’s favor, it’s possible it could rule that the special master’s review shouldn’t end entirely but that Trump can’t claim executive privilege to block specific documents from the DOJ’s investigation, which the DOJ noted in a court filing would still “substantially narrow” the special master’s review.

Surprising Fact

Grant and Brasher, the two judges on the panel whom Trump appointed, previously ruled against the former president on the Mar-A-Lago documents. They were in the panel of judges that granted the DOJ’s request to exclude classified documents from the special master’s review, meaning they may be willing to break with the former president and rule against him again now.

Key Background

Trump asked a federal judge to appoint a special master two weeks after the DOJ searched Mar-A-Lago in August, part of an ongoing investigation into Trump taking White House documents back with him and whether that violated federal law. Federal investigators seized more than 11,000 White House documents from Mar-A-Lago during the August search—including classified and top secret materials—after Trump had previously turned over only 15 boxes of materials voluntarily and only a small number of additional classified documents in response to a subpoena. U.S. District Judge Aileen Cannon, a Trump appointee, had granted the ex-president’s request for a special master and named Dearie to oversee the review, ruling that not allowing the review could cause “reputational harm” to Trump if he got indicted based on materials that could have been filtered out. Cannon’s ruling was widely decried by legal experts, and the DOJ went to the 11th Circuit after the district judge refused to amend her order to exclude classified documents from the review. This week’s 11th Circuit hearing came days after Attorney General Merrick Garland appointed John Smith to serve as the special counsel to oversee the DOJ’s investigations into the Mar-A-Lago documents and the aftermath of the 2020 election, so as to avoid a conflict of interest after Trump launched his 2024 presidential campaign a week ago. The DOJ said in a court filing to the 11th Circuit that Smith agreed with all of the legal arguments the agency has made so far in the special master case.