A federal appeals court panel sounded highly skeptical Tuesday about former President Donald Trump’s effort to rein in the Justice Department’s investigation into a trove of government documents, including sensitive national security records, at his Mar-a-Lago estate.
The afternoon showdown at the 11th Circuit Court of Appeals in Atlanta was the first courtroom encounter between Trump’s team and federal prosecutors since Attorney General Merrick Garland tapped longtime DOJ public corruption prosecutor Jack Smith last week to serve as special counsel on Trump-related criminal investigations.
All three of the judges on the appeals panel — including two appointed by Trump himself — seemed inclined to conclude that U.S. District Court Judge Aileen Cannon erred when she granted Trump’s request for an independent review to assess Trump’s claims that some of the documents are legally protected and when she ordered that the records be off limits to investigators until those claims are litigated.
From the outset of the 35-minute session, the appeals judges aggressively challenged Trump’s legal position, suggesting that he was getting accommodations that the courts almost never grant to a criminal suspect before charges are filed.
“Has there ever been an exercise of this kind of jurisdiction, where there’s no showing that the seizure itself was unlawful?” Chief Judge William Pryor Jr., an appointee of President George W. Bush, asked.
Trump’s attorneys could not identify an example.
Judge Britt Grant, a Trump appointee, later chimed in to note that Trump “hasn’t really made much of an effort to show specific need.”
The uphill argument session for Trump is the latest apparent legal setback for the former president, who is facing a widening set of criminal and civil threats at the outset of his third full-scale presidential bid. In addition to the special master probe — which includes the documents investigation, as well as matters arising from Trump’s effort to subvert the 2020 election — an Atlanta-area district attorney is probing Trump’s election gambit and New York’s attorney general is probing his business empire.
Trump’s legal predicament seems to have grown more dire just as his political fortunes have dimmed, following the defeat of many of his handpicked candidates for Senate, governor and secretary of state races across the country. And the Jan. 6 select committee in Congress is preparing to unload a massive cache of evidence in the next few weeks.
On Tuesday, the appeals court panel seemed prepared to deliver another blow. The judges raised particular alarm about setting a precedent that could disrupt innumerable criminal investigations, and they wondered whether Trump’s attorneys were seeking special treatment for the ex-president.
Arguing for Trump, attorney James Trusty insisted that was not the case and emphasized the unprecedented nature of the court-ordered search of Trump’s Florida home.
“We’re talking about an extreme situation,” Trusty said. “We’re not looking for special treatment for President Trump. We are recognizing that there’s a context here.”
An order issued in August by Cannon, a Trump appointee based in Fort Pierce, Fla., also halted the government’s ability to use the records in its criminal investigation until Trump’s objections are addressed. However, in September, the appeals court granted an emergency motion by the Justice Department that effectively carved out from the special master process about 100 documents with classification markings such as “top secret.”
Realizing that he appeared to be finding little traction with the judges, Trusty began backpedaling and seemed close to conceding that it would be OK to lift the part of Cannon’s order that prevents investigators from accessing most of the documents, as long as the Trump team can continue to pursue its claims that the records were improperly seized.
“The injunction, frankly, is almost the most overblown part of the litigation. … What we’re trying to prevent is the amputation of a thoughtful process,” Trusty said. “It is deep in the process.”
Trusty also contended that the search was wildly overbroad and swept up “incredibly personal” items.
“This was carte blanche,” Trusty argued. “This is why they took golf shirts and pictures of Celine Dion.”
However, the warrant issued by a magistrate judge as part of an investigation into alleged retention of classified information, theft of government records and obstruction of justice allowed investigators to take documents and other items located in the same folder or container as government records that typically go to the National Archives at the conclusion of a presidency.
The presence of personal effects with other records can be used by investigators to try to prove who had knowledge that the records were there.
“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,” Pryor said.
In an unusual move signifying the importance of the case, the Justice Department dispatched an attorney from the Solicitor General’s office, Sopan Joshi, to argue that Cannon’s order should be thrown out.
Joshi said Trump already has been given access to copies of all the seized documents, save for those marked classified.
“What he wants is to prevent the government from using the documents, and I’m not sure that that would ever be a valid justification,” Joshi said.
The Justice Department began Tuesday with an advantage. Grant and Judge Andrew Brasher — both appointed by Trump himself — have been sharply critical of the former president’s effort to impose limits on the criminal investigation. They ruled against him last month after the DOJ made an emergency bid to restart aspects of its criminal probe that had been put on hold by Cannon.
The third judge, Pryor, is a highly conservative appointee of President George W. Bush. Trump’s arguments seemed to fare no better with Pryor than with the other two appeals judges.
In September, Cannon tapped Brooklyn-based U.S. District Court Judge Raymond Dearie, an appointee of President Ronald Reagan, to field Trump’s objections to the search and to conduct a detailed review of documents he claims are subject to executive-privilege or other protections. Dearie has been overseeing that process for more than two months, but it could abruptly end if the appeals court rules that Cannon should not have appointed a special master in the first place.
Typically, prosecutors use their own mechanisms to isolate privileged records seized in an investigation, relying on a “taint team” or “filter team” of other prosecutors to segregate certain materials and engage with defense attorneys about whether the records are protected.
However, in rare cases involving searches of law or medical offices or records, judges have imposed the special master process to try to safeguard public confidence. When investigators raided Trump lawyers Michael Cohen and Rudy Giuliani, for instance, a retired judge was brought in to referee privilege fights.
Just hours before the appeals court arguments began Tuesday, there was a signal that Trump’s team was already bracing for the possibility that it’s likely to lose the appeal.
In a 12-page filing, Trump’s attorneys asked Cannon to fully unseal the affidavit the FBI used to justify the search of Mar-a-Lago. Trump’s legal team expressed fears that the traffic jam of investigations into Trump could result in his personal records being sent to prosecutors investigating other matters connected to the ex-president.
“A general rummaging through the belongings of President Trump is a particularly ominous moment in law enforcement history,” Trump’s lawyers wrote in the filing, signed by attorney Lindsey Halligan. “With DOJ and some state officials engaging in various efforts to investigate President Trump, the search smacks of pretextual conduct with hopes of feeding personal documents to prosecutors or agents who might find use for them in unrelated pursuits.”
The filing was replete with references to Cannon’s earlier rulings, in which she chastised prosecutors for alleged leaks and largely embraced Trump’s legal positions. If the appeal argued Tuesday is successful, the special master process Cannon ordered would be scuttled and her role in the dispute could end.
While Smith is now overseeing the team investigating the presence of various government records at Mar-a-Lago and possible obstruction of justice in the probe, the longtime prosecutor was not on hand for Tuesday’s arguments. He had a biking accident recently in the Netherlands, where he has been prosecuting war crimes cases from Kosovo in the Hague, officials said. Due to the mishap, Smith required surgery on his knee. He’s taking on his new assignment remotely for now and is expected to return to the U.S. soon, officials said.
The Justice Department submitted to the 11th Circuit an unusual filing Monday on behalf of Smith, notifying the court of his new role and advising that he “approves all of the arguments that have been presented in the briefs and will be discussed at the oral argument.”