US court says Trump criminal probe can resume classified records review

By Reuters   September 21, 2022 | 07:01 pm PT
US court says Trump criminal probe can resume classified records review
Former U.S. President Donald Trump attends a rally in Wilkes-Barre, Pennsylvania, U.S., September 3, 2022. Photo by Reuters/Andrew Kelly
The U.S. Justice Department can resume reviewing classified records seized by the FBI from former President Donald Trump's Florida home pending appeal, a federal appellate court ruled on Wednesday, giving a boost to the criminal investigation into whether the records were mishandled or compromised.

The Atlanta-based 11th U.S. Circuit Court of Appeals granted a request by federal prosecutors to block U.S. District Judge Aileen Cannon's stay barring them from using the classified documents in their probe until an independent arbiter, called a special master, vets the materials to weed out any that could be deemed privileged and withheld from investigators.

The appeals court also said it would agree to reverse a portion of the lower court's order that required the government to hand over records with classification markings for the special master's review.

"We conclude that the United States would suffer irreparable harm from the district court’s restrictions on its access to this narrow—and potentially critical—set of materials, as well as the court’s requirement that the United States submit the classified records to the special master for review," the three-judge panel wrote.

The panel added that the decision is "limited in nature," as the Justice Department had asked only for a partial stay pending appeal, and that the panel was not able to decide on the merits of the case itself.

The department's request to the court had not asked for a reversal of Cannon's order itself, and it is not clear if prosecutors may separately seek to appeal other parts of Cannon's ruling on the special master appointment.

"We decide only the traditional equitable considerations, including whether the United States has shown a substantial likelihood of prevailing on the merits, the harm each party might suffer from a stay, and where the public interest lies," the appeals court said.

The three judges who made the decision were Robin Rosenbaum, an appointee of Democratic former President Barack Obama, and Britt Grant and Andrew Brasher, both of whom were appointed by Trump.

Trump's lawyers could potentially ask the U.S. Supreme Court, whose 6-3 conservative majority includes three justices appointed by him, to intervene in the matter.

In their filings on Tuesday, Trump's lawyers urged the court to keep the stay in place and to allow them under the supervision of the special master, U.S. Judge Raymond Dearie, to review all of the seized materials, including those marked classified.

A Justice Department spokesperson did not have an immediate comment. Attorneys for Trump could not be immediately reached for comment.

The FBI conducted a court-approved search on Aug. 8 at Trump's home at the Mar-a-Lago estate in Palm Beach, seizing more than 11,000 documents including about 100 marked as classified.

The search was part of a federal investigation into whether Trump illegally removed documents from the White House when he left office in January 2021 after his failed 2020 re-election bid and whether Trump tried to obstruct the probe.

Cannon, a Trump appointee herself, appointed Dearie to serve as special master in the case at Trump's request. The Justice Department had objected to the appointment of a special master.

Cannon tasked Dearie with reviewing all of the materials, including classified ones, so that he can separate anything that could be subject to attorney-client privilege or executive privilege - a legal doctrine that shields some White House communications from disclosure.

As one of his defenses, Trump has claimed on social media posts without evidence that he declassified the records.

However, his lawyers have not made such claims in any of their legal filings, and during a hearing before Dearie on Tuesday, they resisted his request to provide proof that Trump had declassified any records.

Although the appeals court stressed its ruling was narrow in scope, it nevertheless appeared to sharply rebuke Cannon's ruling from top to bottom and many of Trump's legal arguments.

"[Trump]has not even attempted to show that he has a need to know the information contained in the classified documents," the judges wrote. "Nor has he established that the current administration has waived that requirement for these documents."

The Justice Department previously also raised strong objections to Cannon's demand that Dearie review the seized records for documents possibly covered by executive privilege, noting that Trump is a former president and the records do not belong to him.

While it voiced disagreement, however, the Justice Department did not appeal that portion of Cannon's order.

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