Photograph: Jonathan Ernst/Reuters
The US court of appeals for the 11th circuit appeared inclined on 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 for potential privilege protections.
The result of the hearing is consequential for Trump: should he lose, it could mark the end of the special master process on which he has relied to delay, and gain more insight into, the investigation surrounding his potential mishandling of national security information.
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The three-judge panel – led by chief appellate judge William Pryor – did not issue a ruling from the bench in Atlanta, Georgia, but appeared skeptical that Trump should get special treatment and be able to undergo a criminal investigation because of his status as a former president
Trump had started the afternoon hearing with the disadvantage that the other two judges on the panel, Britt Grant and Andrew Brasher, had previously said in a related appeal that the Trump-appointed US judge Aileen Cannon had “abused her discretion” in granting the special master, who is reviewing the materials the FBI seized.
The fundamental question, Pryor said in court, was whether it was appropriate for the judicial branch to interfere in an executive branch investigation if there was not some extraordinary circumstance.
Pryor asked Trump’s lawyer Jim Trusty whether he thought the FBI’s seizure of documents from Mar-a-Lago was potentially unlawful, and, if the seizure was not unlawful, whether they had found any other case in which the target of a search warrant got an injunction.
“It has to be extraordinary,” Pryor said, adding that there seemed nothing 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 precisely why the case was extraordinary and warranted the appointment of a special master, as well as suggesting that the Trump legal team had at least suspected that the seizure was potentially unlawful.
But Pryor appeared unconvinced, exclaiming: “If you can’t establish that, what are we even doing here?”
The department also argued at the hearing that the 11th circuit should terminate the injunction preventing federal investigators from examining the documents under review by the special master, as Cannon had misapplied the four-part Richey test used to make her judgment.
That issue is the original rationale for the special master. Cannon determined Trump failed to satisfy the first Richey test – whether he suffered “callous disregard” to his constitutional rights when the FBI searched Mar-a-Lago – but granted Trump’s request since she felt he met additional tests.
The department – echoing the 11th circuit’s own reasoning in an earlier appeal – has said Trump’s failure to satisfy that callous disregard standard alone should have resulted in the denial of the request, although the former president’s legal team contested that interpretation.
But even if Cannon had correctly applied Richey, the department has argued, she was wrong to prevent it from accessing the materials under review.
The injunction was handed down on the basis that if Trump was able to show that a proportion of documents were protected by executive or attorney-client privilege, then they could not be part of the evidence cache obtained by federal investigators in the event of prosecution.
Yet in the course of the special master process, the department has noted, Trump’s lawyers have claimed the documents were not so much privileged, but personal. If that was true, the problem for Trump is that then they would have been lawfully seized in the FBI search.
Trump requested the appointment of a special master to examine the documents seized from Mar-a-Lago – including 103 bearing classified markings – shortly after the August 8 search because, his lawyers claimed at the time, some of the materials could be subject to privilege protections.
The request was granted by Cannon, who gave exceptional deference to Trump on account of his status as a former president in deciding that he satisfied the four-part Richey test, and temporarily barred the department from using the seized materials in its criminal investigation.
But the department appealed part of Cannon’s order to the 11th circuit, which sided with the government and ordered the 103 documents marked classified to be excluded from the special master review and returned to investigators, criticizing Cannon for granting the review in the first place.
That prompted Trump to unsuccessfully appeal to the supreme court – while the department then appealed the entirety of the special master order, incorporating the 11th circuit’s rulings and its scathing rebuke of Cannon as having “abused her discretion” in court filings.
“This court has already granted the government’s motion to stay that unprecedented order as far as it relates to the documents bearing classification markings,” the department wrote in an October filing. “The court should now reverse the order in its entirety for multiple independent reasons.”