A three-judge panel on the 11th Circuit Court of Appeals has ruled in favor of the Justice Department in its push to stop a review by a court-appointed third party known as a special master of items seized from Donald Trump’s southern Florida resort Mar-a-Lago.
These items were taken by investigators amid an ongoing criminal investigation into Trump’s harboring of classified documents after exiting the presidency. The special master’s review, which was only covering unclassified items taken in the search, provided a context for the Trump team to raise challenges about the status of the documents — whether personal or presidential — and any privileges covering them. Although the process was nearing its preordained end, the federal judge filling the arbiter’s role hadn’t issued any new recommendations for individual documents to be blocked from use by investigators. Trump himself originally pushed for the special master’s review, although it hasn’t produced a whole lot for his side beyond a temporary — and now evidently undone — delay. (Trump can still appeal the three-judge panel’s decision.)
In written arguments before the appeals court, the Justice Department cast serious doubts on the notion that personal records seized with a warrant would somehow warrant the rare step of selecting a special master. Isn’t it pretty much a given that a search warrant would sweep up personal records? Isn’t that the whole point? Does Trump think he just gets to evade the legal standards to which everyone else is held because he’s special? Jack Smith, the former department official recently picked as a special counsel for two Trump probes, is leading the documents investigation, and he also weighed in, pushing back in a filing against the Trump team’s usage of a particular past case in its arguments — a past case in which it was the government that proposed a special master and where records were seized from a lawyer, which ordinarily warrants greater care.
“The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant,” the appeals panel unanimously concluded Thursday. “Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.” It seems predictable Trump would appeal, but it is not a given even the conservatively leaning U.S. Supreme Court will conclude in his favor. Just in recent days, the court declined to block a House financial affairs committee from accessing years of his tax returns — records that were since made available by the Treasury Department, years after the first ask.
