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Special consideration: Why the Trump special master could be entering final days

Washington Examiner logo Washington Examiner 11/29/2022 Jerry Dunleavy
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The special master granted by a judge at former President Donald Trump’s request may be entering his last days entangled in the Mar-a-Lago raid saga as an appeals court strongly considers overturning his appointment.

U.S. District Judge Aileen Cannon appointed Judge Raymond Dearie in September to serve as special master and to review independently the thousands of records seized from Trump’s Florida resort home during an unprecedented FBI raid in August, but the Justice Department appealed that selection. The U.S. Court of Appeals for the 11th Circuit directed the DOJ and Trump’s lawyers to appear in Atlanta last week to debate the issue and will likely issue their ruling in the coming days.

The appeals court judges who will make the final decision on the special master are Trump appointees Britt Grant and Andrew Brasher, who previously sided with the Justice Department against the former president in another special master ruling in September, and former President George W. Bush appointee William Pryor, the chief judge of the circuit court.

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Dearie said on Monday he had “determined that there are no matters requiring counsel to travel to Brooklyn for an in-person conference” that had been scheduled for this Thursday, and so the hearing was canceled.

During the hearing last week between Trump’s lawyers and the Justice Department, the three appeals judges asked pointed questions of the Trump team and seemed to lean toward tossing out the special master or severely limiting his scope, although oral arguments don’t always indicate how judges will ultimately rule.

Grant and Brasher, as well as Obama appointee Robin Rosenbaum, unanimously sided with the DOJ in September when they agreed with the DOJ that Cannon had “likely erred” in her ruling pausing the DOJ’s criminal investigation and when she had required prosecutors to allow Dearie to scrutinize independently the roughly 100 documents with classified markings that had been seized from Mar-a-Lago.

Cannon had ruled in September that she “temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order.”

But Grant, Brasher, and Rosenbaum granted the DOJ’s request to keep using the allegedly classified documents in its investigation as the appeals process continued. Grant, Brasher, and Pryor must now decide whether to allow the special master process to continue any further.

"The problem is we have to determine when it's proper for a district court to do this in the first place," Pryor told Trump lawyer Jim Trusty last week, according to CBS News. "Basically, other than the fact this involves a former president, everything else about this is indistinguishable from any pre-indictment search warrant, and we've got to be concerned about the precedent that 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, exercise equitable jurisdiction and interfere with the executive branch's ongoing investigation."

Grant argued during the hearing that Trump “hasn’t really made much of an effort to show specific need,” according to Politico. ABC News also noted that Brasher said: “Other than the fact that this involves a former president, everything else about this is indistinguishable from any pre-indictment search warrant.”

Pryor also questioned Trump's lawyers on whether the raid by the FBI was unlawful, asking: "If you can't establish that, then what are we doing here?"

"You've talked about all these other records and property that were seized. The problem is the search warrant was for classified documents and boxes and other items that are intermingled with that," Pryor also said. "I don't think it's necessarily the fault of the government if someone has intermingled classified documents in all kinds of other personal property."

Jack Smith, an Obama DOJ veteran who until recently was working as a war crimes prosecutor at The Hague, was picked by Attorney General Merrick Garland last week to handle the Justice Department’s criminal investigations into Trump related to the Capitol riot and Mar-a-Lago.

The Justice Department told the court last week that Smith “has reviewed the filings in this litigation and approves all of the arguments that have been presented in the briefs and will be discussed at the oral argument in this case.”

Trump’s legal team has sought to defend the special master order. “This investigation of President Trump by the administration of his political rival is both unprecedented and misguided,” the former president’s legal team argued to the appeals court.

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Trump’s lawyers added: “The Court should simply not allow the Government to cloak these proceedings from public view based on its unverified assertions. The Special Master — and the District Court — should not be inhibited from exercising the jurisdiction afforded to them.”

The search warrant application cover sheet, unsealed in late August, provided more details on what the DOJ was looking for on Aug. 8 when they searched Trump’s Florida resort. Trump’s lawyers filed a motion with Cannon last week asking for access to a fully unredacted version of the Aug. 5 search warrant.

 

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Tags: Justice, Merrick Garland, Justice Department, Jack Smith, Donald Trump, Mar-a-Lago

Original Author: Jerry Dunleavy

Original Location: Special consideration: Why the Trump special master could be entering final days

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