As former President Donald Trump faces the new reality of the special counsel leading the Department of Justice investigations on his conduct, the federal appeals court on Tuesday will hear arguments about why it should be removed what has been a famous obstacle in one of the investigations.
The 11th U.S. Circuit Court of Appeals will examine a lower court’s request that a special master review materials the FBI seized from Trump’s home and Mar-a-Lago resort in August.
The move by a Florida-based judge to appoint a third party to help decide what of the roughly 22,000 pages of material obtained in the search belongs to investigators – threw a significant wrench in the criminal investigation of the Department of Justice about whether the records of Trump’s. The White House was mishandled.
Prosecutors are investigating whether there is obstruction of justice, criminal handling of government records, and violations of the Espionage Act, which prohibits the unauthorized storage of national defense information.
The Justice Department has obtained a carveout from the 11th Circuit that allows it to continue its investigation into documents marked as classified.
Now, the Department of Justice is asking to throw out the entire special master review, led by Raymond Dearie.
The appeals court’s ruling eliminating the special master’s review of the Mar-a-Lago documents will accelerate the pace of the government’s document investigation, which is in some ways the most straightforward of the various investigations surrounding the former president and 2024 candidate.
Special counsel Jack Smith is currently overseeing the Mar-a-Lago investigation and an investigation into Trump’s efforts after the 2020 election to reverse his election defeat. Smith is not expected to attend Tuesday’s hearing.
The ruling by U.S. District Judge Aileen Cannon — who sits in federal court in Ft. Pierce, Florida – to appoint a special master attracted criticism from a wide spectrum of legal experts.
When the 11th Circuit in September released documents marked as classified from review, a three-judge panel indicated that all special master appointments were based on legally valid premises. However, it will be a new panel – chosen at random – that hears the DOJ’s appeal on Tuesday, creating the possibility that the former president will draw a judge sympathetic to his claims.
Trump asked for a special master because he said there was a risk that documents with attorney-client privilege or executive privilege would be swept up in the search. In his arguments with the appeals court, however, he focused on the theory that he had the ability to designate as a person many documents from the White House. Therefore, Trump answered, the Department of Justice does not have the right to conduct a criminal investigation about how the material has been arranged.
“President Trump has a clear interest in his personal records (even the President) and the District Court acted within its discretion to recognize that a neutral party is needed to facilitate a decision on the legal status of the documents,” his lawyer said in a brief. with the court of appeals.
The Justice Department told the 11th Circuit that Trump’s new theory is “absurd,” “factually irrelevant” and that the appeals court’s argument should not be considered. Prosecutors argue that there is no reason to require a review and that the special master process, by restraining the ability of investigators to use documents in their investigations, causes undue harm to the public interest in the rapid administration of criminal law.
Cannon appointed Dearie, a senior judge sitting in Brooklyn federal court, to organize the third-party review. Dearie has indicated he wants to move quickly and has shown little patience for delay tactics from the Trump team. However, Cannon has intervened to change the plan, including postponing the end date of the review until mid-December. At that time, Dearie will send a report to Cannon with his recommendations for who should prevail in a dispute between Trump and prosecutors over whether certain documents can be used in the investigation, but Cannon will make the final call.
The Justice Department has returned to Trump a selection of documents that are legally binding or are non-government records with sensitive personal information, such as medical records. At stake now are more than 2,800 documents seized in the search that Trump is fighting to keep out of investigators.