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Federal appeals court appears skeptical of need for special master ordered by Trump-appointed judge in Mar-a-Lago documents case

MarketWatch logo MarketWatch 11/23/2022 Associated Press
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WASHINGTON (AP) — A federal appeals court appeared deeply skeptical Tuesday that former President Donald Trump was entitled to challenge an FBI search of his Florida estate or to have an independent arbiter review documents that were seized from the home.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit, including two Trump appointees, repeatedly suggested Trump was seeking special treatment in asking that the “special master” conduct an independent inspection of records taken in the Aug. 8 search of Mar-a-Lago.

From the archives (September 2022): Tensions run high between Trump-appointed federal judge and the special master the Trump team recommended — and whom that federal judge appointed

“Other than the fact that this involves a former president, everything else about this is indistinguishable from any pre-indictment search warrant,” said William Pryor, the court’s chief judge, a George W. Bush appointee.

Trump lawyer James Trusty referred to the court-approved FBI search of the private membership club where Trump also resides as a ‘raid.’ When one of the appellate panel’s three judges — a Trump appointee — asked whether that word accurately described the event, Trusty apologized for using a ‘loaded term.’

He added: “We’ve got to be concerned about the precedent we would create that would allow any target of a federal criminal investigation to go into a district court and to have a district court entertain this kind of petition … and interfere with the executive branch’s ongoing investigation.”

The judges indicated through their questioning that they were likely to side with the Justice Department, which has sought an immediate end to a special master review process that it says has unnecessarily delayed its investigation into the presence of classified documents at Mar-a-Lago. It was not immediately clear when the court might rule.

In another legal setback for Trump, the Supreme Court on Tuesday cleared the way for a congressional committee to get his tax returns after a three-year fight.

The special master in the Mar-a-Lago case, veteran New York Judge Raymond Dearie, was appointed in September at the Trump team’s request. He was tasked with conducting an independent inspection of the roughly 13,000 documents seized in the search and filtering out from the criminal investigation any that might be covered by claims of attorney-client or executive privilege.

The Florida judge who appointed him, Aileen Cannon, had blocked federal prosecutors from using the seized records as part of their investigation during the course of Dearie’s work. A three-judge panel of the appeals court later restored the Justice Department’s access to the roughly 100 documents with classification markings, but prosecutors say they want unfettered access to the much larger trove of unclassified records and have asked the court to end the process entirely.

From the archives (September 2022): Florida judge faces criticism following special-master order in Trump case

News Pulse (August 2022): Federal judge signals openness to Trump request for special master to review Mar-a-Lago files

Two of the judges in that decision — Britt Grant and Andrew Brasher, both Trump appointees — participated in Tuesday’s arguments.

Though the investigation is centered on the possible mishandling of classified records, the Justice Department says it also regards the unclassified documents recovered from Mar-a-Lago as relevant to the probe. That’s because of the mingling with classified documents of personal records that prosecutors say could provide key evidence of ownership or possession.

“You’ve talked about all these other records and property that were seized,” Pryor told Trump lawyer James Trusty at one point. “I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents and all kinds of other personal property.”

In court papers, the Justice Department has said the only purpose for which it’s been able to use the unclassified documents so far has been to engage in a “prolonged dispute” with the Trump team about their categorization.

Trusty, the Trump lawyer, described as “overblown” Justice Department arguments that its investigation had been slowed in any appreciable way. He said the department already had access to the classified documents and minimized the import of the remaining materials, describing them as birthday cards, thank you notes, photographs and other personal items.

“It is not realistic for the government to complain that this has hobbled their ability to investigate,” Trusty said.

He denied that he was seeking special treatment for Trump but also urged the judges to consider the context of the case. “This is a situation where a political rival has been subjected to a search warrant where thousands of personal materials have been taken,” he said.

But when Trusty at one point referred to the FBI search as a “raid,” Judge Grant, a Trump appointee, chidingly asked him whether “raid is the right term for execution of a warrant.”

Trusty apologized for using what he acknowledged was a “loaded term.”

The special master process has been playing out alongside a criminal investigation into the retention of the documents and possible obstruction.

Attorney General Merrick Garland last week named a veteran prosecutor, Jack Smith, to serve as special counsel and oversee the Mar-a-Lago investigation and key aspects of a separate probe into efforts to overturn the results of the 2020 presidential election.

More about the Mar-a-Lago search:

‘There doesn’t have to be a process’: In Sean Hannity interview, Trump claims presidents can declassify a document just by thinking about it

Veteran New York judge named as special master in Trump Mar-a-Lago probe

Supreme Court rebuffs Donald Trump request that it involve itself in the Mar-a-Lago documents case

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