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ATLANTA — A three-judge panel of appeals courts expressed deep skepticism Tuesday that the federal government violated former President Donald Trump’s rights when it searched Mar-a-Lago in August, questioning whether a lower court judge erred in appointing an outside expert to review the documents. seized from Florida property.
During oral arguments in the U.S. Court of Appeals for the 11th Circuit, the government said the neutral arbitrator, known as a special master, should never have been appointed. Justice Department attorney Sopan Joshi told the justices that Trump has failed to show that he suffered “irreparable harm” from the FBI’s search that would legally require a special master. Joshi called the appointment an “intrusion” into the executive branch.
In response, James Trusty, Trump’s lawyer, argued that a special appointment for teachers did not significantly hinder the criminal investigation of possible mishandling of classified documents, obstruction and destruction of government property. Trusty said that during the Aug. 8 “carte blanco” search of Trump’s home and private club, agents improperly took personal items, including golf shirts and a photo of singer Celine Dion.
But that argument didn’t seem to win over the judges, who repeatedly said Trump’s team hasn’t shown it needs those items back or that the search was overbroad. Chief Justice William H. Pryor Jr. expressed concern about the precedent the case could set by allowing the target of a search warrant to go to court and request a special master who could interfere with an executive branch investigation before an indictment is issued.
A judge asked Trusty directly whether someone who is the subject of a federal search should be able to request a special master. Trusty responded that this research is unique, saying that Trump is a “political rival” of the sitting president.
Pryor also appeared to criticize the Trump team for asking for a special master without proving the search was illegal.
“If you can’t establish that it was illegal,” he said, “then what are we doing here?”
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The special master case originated in the Florida courtroom of US Judge Aileen M. Cannon, who He sided with Trump in September by appointing a special master and barring the Justice Department from using the seized materials, including 103 documents marked classified, until the outside review was concluded. He ordered the special master to determine whether any of the documents should be shielded from criminal investigators because Trump could legitimately claim certain privileges over them.
Pryor and Justices Andrew L. Brasher and Britt C. Grant heard an appeal of Cannon’s decision Tuesday. Pryor, the former Alabama attorney general, was appointed by President George W. Bush. Brasher and Grant are Trump nominees and were part of the three-judge panel that ruled against Trump earlier this fall on limited aspects of the special teacher appointment.
Joshi, who argued Tuesday’s case for the Justice Department, is a former clerk to Supreme Court Justice Antonin Scalia, a conservative, and now works in the attorney general’s office. It is the first time the Justice Department has used a lawyer from the attorney general’s office in the special master’s proceedings, a sign that the government sees the appeal as an important case that could reach the Supreme Court.
Chris Kise, a Trump defense attorney who has previously argued on Trump’s behalf in special master proceedings, was not present at the hearing.
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While the justices seemed more receptive to the Justice Department’s arguments than Trusty’s, they also openly debated whether they had the appropriate jurisdiction to overturn the entire lower court ruling and fire the special master, peppering Joshi with questions about the his authority in this case.
But while Trump’s lawyers had raised the jurisdictional issue in an earlier filing about the special master, Trusty did not focus on the matter during his argument Tuesday.
The judges criticized the Trump team for making different arguments in different places. For example, in a recent appeals court filing, Trump’s team argued that under the Presidential Records Act, the former president had the right to treat presidential records as personal, which allowed him to legitimately have the old White House records in Mar. a-Lake
Trusty also did not elaborate on that argument Tuesday. But he introduced a new one, saying the warrant used to search Mar-a-Lago was too broad a “broad warrant.” Joshi disputed that characterization, saying the court-approved warrant was for specific materials and only allowed a search of specific parts of Mar-a-Lago.
“That sounds like a new argument,” Pryor said after listening to Trusty. “This has really been changing the arguments.”
On Tuesday, Trump’s lawyers also asked Cannon to release an unredacted version of the affidavit that investigators used to convince a judge to grant a warrant. A redacted version has already been released, and Trump’s lawyers argued that seeing the full version would help them understand how investigators justified the “impermissibly broad search.”
The Justice Department’s earlier appeal of parts of the special master decision allowed the government to immediately resume using the classified documents in its criminal investigation. The latest appeal asks the court to overturn the special master’s appointment, which would end the review process and give prosecutors access to 13,000 documents that are not marked as classified.
Raymond J. Dearie, a former chief federal judge in New York who was appointed to sort through the documents, is expected to complete the review next month. He has expressed skepticism that Trump has any personal or privilege-related claims to the seized material, but has yet to say whether it should be considered privileged and shielded from criminal investigators.
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Trusty said Tuesday that the two sides have been arguing over what material should be shielded from investigators and still disagree on the fate of 930 documents. Any recommendation to protect or not protect documents would have to be approved by Cannon, unless the special master appointment is overruled.
Trusty disputed the Justice Department’s claims that the special master review is slowing down the criminal investigation, noting that Attorney General Merrick Garland’s decision Friday to appoint a special counsel to oversee the investigation suggests it won’t end imminently
Joshi disagreed, saying he expects objections to Dearie’s determinations, which could lead to appeals and months of delays.
“The delay is fatal to the vindication of the law,” Joshi said. “And that is slowly being applied here.”
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