Court Appears Ready to End Special Master Review in Trump Files Inquiry


A federal appeals court panel signaled on Tuesday that it is likely to end a review of a trove of government documents seized this summer from former President Donald J. Trump, a move that would greatly free up an investigation into his handling of the material.

At a 40-minute hearing in Atlanta, the three-member panel of the U.S. Court of Appeals for the 11th Circuit seemed to embrace the Justice Department’s position that a federal judge had acted improperly two months ago when she ordered an independent arbiter to review the documents taken from Mr. Trump’s Florida compound, Mar-a- Lago.

Through their questions, the panel expressed concern that Judge Aileen M. Cannon, who appointed the so-called special master, had acted without precedent by ordering a review of the seized material. The panel also suggested that Judge Cannon, who was appointed by Mr. Trump, had overstepped by inserting herself into the case and trying to bar the government from using the records in its investigation into whether Mr. Trump had illegally kept national security records at Mar-a-Lago and obstructed the government’s repeated efforts to retrieve them.

The hearing on Tuesday was the latest development in the protracted legal fight over Mr. Trump’s handling of nearly 13,000 government documents and photographs, including some that were marked as highly classified. It came days after the Justice Department appointed a special counsel, Jack Smith, to oversee both the documents investigation and a separate inquiry into Mr. Trump’s effort to overturn the 2020 election.

During the proceeding in Atlanta, all of the judges on the panel, two of whom were Trump appointees, appeared to support the Justice Department’s overarching argument that Judge Cannon’s appointment of the special master and her efforts to keep the government from using the documents seized from Mr. Trump were highly unusual and wrongly decided.

Lawyers for the department told the panel there was no precedent for Judge Cannon to have interfered in a case in which charges had not even been filed. The department lawyers also argued that Judge Cannon should not have gotten involved because no evidence existed that the search of Mar-a-Lago had been unlawful.

One of the appellate judges, Andrew L. Brasher, pressed James Trusty, a lawyer for Mr. Trump, to cite “a single decision by a federal court other than this one” that had issued a ruling in a similar case.

Mr. Trusty tried to sidestep that question, suggesting that the Trump legal team may still offer claims that the search was unlawful and noted that a “raid” of a former president’s home was itself unprecedented. But Britt Grant, another Trump-appointed judge on the panel, interrupted Mr. Trusty and objected to his use of the word “raid” to describe the court-authorized search of Mar-a-Lago.

Judge Grant also noted that many targets of search warrants believe the government overreached in their cases and urged Mr. Trusty to explain why Mr. Trump’s situation was different from that of any other subject of a criminal investigation.

The third judge on the panel, William Pryor Jr., an appointee of former President George W. Bush, also appeared inclined to rule against Mr. Trump. Judge Pryor spent much of his time during the hearing questioning a Justice Department lawyer about whether the best way to get rid of the special master’s review would be to vacate Judge Cannon’s order or to simply reverse it.

None of the judges asked any skeptical questions of the Justice Department.

Just before the hearing began, Mr. Trump’s lawyers filed an unusual request to Judge Cannon, asking her to make public the entire affidavit the F.B.I. had used to obtain a warrant to search Mar-a-Lago in August. (A redacted version was released a few weeks after the search took place.)

An unredacted copy would give Mr. Trump’s lawyers access to sensitive information, like the witnesses prosecutors had interviewed or other details that might shed light on the Justice Department’s inquiry. Information like that would prove useful should the lawyers seek to challenge the legality of the search or begin to craft a defense against potential criminal charges.

Asking Judge Cannon, who sits in the Southern District of Florida, to consider unsealing the warrant affidavit would have another effect in the case: It would ensure her continued involvement in the documents inquiry even if the appeals court ultimately dismisses her special master order.

Notably, both Judge Brasher and Judge Grant were part of an earlier three-judge panel that sided in September with the Justice Department in a different appellate question connected to the case.

In that ruling, the panel unanimously decided that the Justice Department could have immediate access to a smaller set of about 100 documents marked classified and use them in the investigation of Mr. Trump as the question of whether prosecutors could have access to the larger trove of materials was being decided.

The panel based its ruling in September on a finding that Judge Cannon never had jurisdiction to get involved in the matter in the first place. The Supreme Court ultimately rebuffed Mr. Trump’s attempt to appeal that decision.

Judge Cannon’s initial decision to grant a special master to sift through about 3,000 documents, records and other materials seized in the Mar-a-Lago search shocked legal experts. Many were taken aback by the way she credited arguments by Mr. Trump’s lawyers that the trove of records should be reviewed not only for those protected by attorney-client privilege, a common practice, but also for those protected by executive privilege.

This month, the Justice Department and Mr. Trump’s lawyers gave the special master, Judge Raymond J. Dearie, a list of the materials and proposals for how he should think about each item should his work be allowed to continue.

Mr. Trump, for instance, has claimed he owns the materials seized under the Presidential Records Act, arguing broadly that the records are his personal property. Those claims extend even to documents like dossiers on proposed clemency decisions, which the Justice Department has said should be considered public property.

The Justice Department has also squarely rejected Mr. Trump’s claim that executive privilege has any role to play in the review.

At the Justice Department’s request, the 11th Circuit has agreed to expedite its decision in the matter argued on Tuesday, though it remained unclear when the panel might issue a final ruling.

Should Judge Dearie be allowed to move forward, he is set to provide recommendations next month to Judge Cannon on which documents, if any, are privileged and should be kept from the government’s investigation.

Judge Cannon will have the final say in the process if it goes forward.

At the same time, the government has been conducting a separate review of the seized materials and is trying to assess what risks to national security were raised by Mr. Trump keeping the records at his country club.

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