The Justice Department on Wednesday got the go-ahead to use documents seized in the FBI raid on Mar-a-Lago as it investigates former President Donald Trump.
The ruling from the federal Court of Appeals for the 11th District also said the Justice Department can keep Trump’s lawyers in the dark about the contents of documents that are marked “classified” during a court-appointed special master’s review of the seized material.
Last week, Judge Aileen M. Cannon of the U.S. District Court for the Southern District of Florida, appointed Judge Raymond Dearie as a special master to review documents seized in the Aug. 8 raid, banned the Justice Department from using those in any investigation until that review is completed, and said all documents seized should be reviewed by Trump’s lawyers.
The Justice Department appealed the parts of the District Court order from Cannon that covered a ban on using the documents and sharing what it says are classified documents with Trump’s attorneys.
The appeals court’s order gave the Justice Department a total victory. Its ruling laid out the arguments from each side.
“The United States argued that (1) Plaintiff did not have a possessory interest in the classified documents (because they belonged to the United States, not to him); (2) such documents could not possibly contain attorney-client privileged information; and (3) even if Plaintiff could exert executive privilege over some of the records, that privilege would be overcome by the United States’s demonstrated, specific need to review the classified documents to see if and how much of a risk to national security existed,” the ruling noted.
Trump’s lawyers argued that “there still remains a disagreement as to the classification status of the documents,” the ruling stated and noted that Trump “emphasized that special-master review was temporary and asserted that he had a statutory right to access the documents.”
The ruling then demolished the legal argument from Trump’s lawyers.
“For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings,” the ruling stated, adding, “Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents. Nor has he established that the current administration has waived that requirement for these documents.”
The ruling touches on the thorny issue of whether Trump declassified the documents in question. Trump has stated in various interviews that he declassified the documents, but his legal team has offered no proof.
Donald Trump on Hannity — 9/21/2022
“If you’re the president of the United States, you could declassify just by saying, ‘It’s declassified’… even by thinking about it…” [27-33]
— RW (@Rob_AirOne) September 22, 2022
In a letter to Dearie, Trump’s lawyers wrote that if details of how Trump declassified documents are divulged in that case, “the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.”
During a hearing before Dearie upbraided Trump’s team for not offering any documented evidence that Trump declassified any documents, according to The New York Times.
The Appellate Court touched on the same issue in its Wednesday ruling.
“Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents,” the ruling said.
The appeals court noted that “at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.”
The court said Trump cannot argue he would be damaged by the release of the documents because “permitting the United States to retain the documents does not suggest that they will be released; indeed, a purpose of the United States’s efforts in investigating the recovered classified documents is to limit unauthorized disclosure of the information they contain.”
The court said that the Justice Department made a better case than Trump’s attorneys over giving investigators access to whatever they want, noting that it would be “difficult, if not impossible” for the Justice Department to determine critical facts about the impact of those documents if “investigators are not permitted to review the seized classified materials.”
“The United States argues that the district court likely erred in exercising its jurisdiction to enjoin the United States’s use of the classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review. We agree,” the court ruled.
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