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Trump DOJ Case: Appeals Court Shuts Down Special Master Review Of Mar-A-Lago Documents

Forbes 12/1/2022 Alison Durkee, Forbes Staff

Topline

A federal appeals court has cut short a special master’s review of White House documents the Department of Justice seized at former President Donald Trump’s Mar-A-Lago estate, siding Thursday with the DOJ, which means the federal government will now be able to review the Mar-A-Lago documents and can potentially bring charges in the Trump investigation sooner.

Former President Donald Trump's Mar-a-Lago resort on February 11 in Palm Beach, Florida. Getty Images © Provided by Forbes Former President Donald Trump's Mar-a-Lago resort on February 11 in Palm Beach, Florida. Getty Images

Key Facts

A panel of three judges at the 11th Circuit Court of Appeals, including two Trump appointees, tossed out a September order ordering a special master to review all Mar-A-Lago documents, and told a lower court judge to dismiss the case.

The appellate court said district court Judge Aileen Cannon did not have jurisdiction to stop the DOJ from using the seized documents, and argued upholding her ruling would force the 11th Circuit to either “drastically expand the availability of equitable jurisdiction for every subject of a search warrant” or “carve out an unprecedented exception in our law for former presidents.”

The 11th Circuit had already sided with the DOJ in September by excluding classified documents from the special master review, but the government had asked the court to now end the proceedings entirely, as U.S. District Judge Raymond Dearie was still tasked with reviewing more than 11,000 non-classified White House documents.

The purpose of the special master’s review was to filter out any documents that may be shielded by attorney-client privilege or executive privilege—though it was still disputed whether documents could be withheld from the DOJ for executive privilege to begin with—so the 11th Circuit’s ruling also means the DOJ can likely use more documents in its Trump investigation than it otherwise would have been allowed.

In a statement, a Trump spokesperson called the ruling “purely procedural and based only on jurisdiction,” and pledged to “continue to fight against the weaponized Department of ‘Justice.’”

What To Watch For

It’s still possible that Trump could ask the full 11th Circuit or the Supreme Court to take up the case and stop the DOJ from getting the non-classified documents while it’s appealed, which would stall the DOJ getting the documents and further slow down its probe. Whether that would actually work is unclear, however, as the Supreme Court has already ruled once against Trump on the Mar-A-Lago documents by letting the DOJ keep the classified documents it seized. If Trump does not ask a higher court to consider the issue, the appeals court’s ruling will put an end to Dearie’s review and the court proceedings over it, and means the DOJ can get possession of the non-classified documents it seized immediately rather than waiting for the review to conclude.

What We Don’t Know:

If the DOJ will indict Trump based on its Mar-A-Lago investigation, and when that could happen. The Justice Department has said it’s investigating whether Trump violated three federal statutes by bringing White House documents with him to Mar-A-Lago, which broadly concern the mishandling of government documents. Those statutes, which includes the Espionage Act, carry punishments of fines or maximum prison sentences of between three and 20 years, depending on the law. Some GOP aides and strategists had speculated that Attorney General Merrick Garland could indict Trump soon after the midterm elections, before the 2024 election cycle gets too underway and complicates the issue. Garland has since appointed a neutral special counsel to oversee the investigation, however, as well as a separate probe into Trump’s efforts to overturn the 2020 election. This means special counsel Jack Smith will now be the one to decide whether to bring charges against Trump, rather than Garland, and an indictment could come slightly later as a result as Smith gets up to speed. Smith has promised he plans to “expeditiously” move forward with the ongoing probes, saying in a statement after he was appointed that “the pace of the investigations will not pause or flag under my watch.”

Key Background

The dispute over the special master has been going on since August, when Trump asked a federal district judge to appoint a third-party special master two weeks after the federal government searched Mar-A-Lago and seized thousands of documents, including classified and top-secret government materials. U.S. District Judge Aileen Cannon, a Trump appointee, granted Trump’s request for a special master in September—the decision that the DOJ appealed to the 11th Circuit—in a ruling that was widely criticized by legal experts. Since then, Cannon appointed Dearie as special master and the judge has begun his oversight of the seized documents, while court battles over the review and its purview have continued to play out. Both the 11th Circuit and Supreme Court allowed classified documents to be excluded from the probe after the DOJ asked Cannon to amend her order and she refused. While it initially only wanted the 11th Circuit to rule on classified documents, the government then expanded its appeal and asked the 11th Circuit to shut down the review entirely—arguing non-classified documents are also integral to its investigation—and the appeals court granted the DOJ’s request to expedite the appeals process.

Further Reading

Mar-A-Lago Special Master: Appeals Court Appears Likely To Side With DOJ And Shut Down Trump Review (Forbes)

Trump Mar-A-Lago Investigation: What To Know As Ex-President Goes To Supreme Court (Forbes)

Supreme Court Rules Against Trump On Mar-A-Lago Classified Documents (Forbes)

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