The U.S. Court of Appeals for the 11th Circuit appeared inclined Tuesday to agree with the Justice Department to potentially curtail the special master review of documents the FBI seized from Donald Trump’s Mar-a-Lago residence because of possible protection of privileges.
The result of the hearing is profound for Trump: If he loses, it could mean the end of the special master process he has relied on to delay investigations into his possible mishandling of national security information and gain more insight.
The three-member panel — led by chief judge William Pryor — did not rule from the court in Atlanta, Georgia, but appeared skeptical that Trump should receive special treatment and undermine a criminal investigation because of his status as a former president.
Trump had opened the afternoon’s hearing with the drawback that the other two judges on the panel, Britt Grant and Andrew Brasher, had previously said in a related appeal that Trump-appointed U.S. Judge Aileen Cannon had “abused her discretion in awarding the special master, who reviews the material seized by the FBI.
The fundamental question, Pryor said in court, was whether it was appropriate for the judiciary to interfere in an executive branch investigation, in the absence of an extraordinary circumstance.
Pryor asked Trump’s attorney, Jim Trusty, whether he thought the FBI’s seizure of documents from Mar-a-Lago might have been illegal, and, if the seizure was not illegal, whether they had found another case where the target received a search warrant warrant.
“It has to be extraordinary,” Pryor said, adding that nothing seemed unusual in this case other than the fact that Trump was a former president.
Trusty argued that Trump’s status as a former president was why the case was extraordinary and warranted the appointment of a special master, and also suggested that Trump’s legal team at least suspected the seizure may have been illegal.
But Pryor seemed unconvinced, exclaiming, “If you can’t establish that, then what are we even doing here?”
The department also argued at the hearing that the 11th Circuit should terminate the warrant to prevent federal investigators from examining the documents being reviewed by the special master, since Cannon’s four-part Richey test used to form her verdict, misapplied.
It is about the original rationale for the special master. Cannon determined that Trump failed the initial Richey test — whether he suffered “callous disregard” of his constitutional rights when the FBI searched Mar-a-Lago — but granted Trump’s request because she felt he was subject to additional tests passed.
The department — echoing the 11th Circuit’s own reasoning in an earlier appeal — has said that Trump’s failure to meet that harsh standard of contempt alone should have resulted in the request being denied, even though the U.S. legal team the former president contested that interpretation.
But even if Cannon applied Richey correctly, the department argued, it was wrong to prevent it from accessing the material under review.
The warrant was issued on the basis that if Trump could prove that some of the documents were protected by executive or attorney-client privilege, they could not be part of the evidence cache obtained by federal investigators in case of prosecution.
But in the course of the special master process, the department has noted, Trump’s lawyers have argued that the documents were not so much privileged as personal. If that were true, the problem for Trump is that they would have been legally seized during the FBI search.
Shortly after the August 8 search, Trump asked for the appointment of a special master to examine the documents seized at Mar-a-Lago — including 103 with secret markings — because, his lawyers claimed at the time, some of the materials would be subject to can be privileges. protections.
The request was granted by Cannon, who paid Trump exceptional deference to his status as a former president by ruling that he passed the four-part Richey test, and temporarily banned the department from using the seized material 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 the 103 documents marked classified be excluded from the special master review and returned to investigators, criticizing Cannon for granting the rating in the first place.
That prompted Trump to unsuccessfully appeal to the Supreme Court — while the department then appealed the entirety of the special head order, declaring the 11th Circuit rulings and Cannon’s scathing rebuke as “abuse of her discretion.” lawsuits were recorded.
“This court has already granted the government’s motion to suspend that unprecedented injunction as it pertains to the classification-marked documents,” the department wrote in an October filing. “The court should now quash the order in its entirety for several independent reasons.”