Court appears ready to end special master review

A federal appeals court panel signaled Tuesday that it is likely to end a review of a trove of government documents seized this summer from former President Donald Trump, a move that would greatly free up an investigation into his handling of the material.

At a 40-minute hearing in Atlanta, the three-member panel of the 11th U.S. Circuit Court of Appeals seemed to embrace the Justice Department’s position that a federal judge had acted improperly two months ago when she ordered an independent arbiter to review the documents taken from Trump’s Florida compound, Mar-a- Lago.

Through its questions, the panel expressed concern that Judge Aileen Cannon, who appointed the so- called special master, had acted without precedent by ordering a review of the seized material. The panel also suggested that Cannon, who was appointed by Trump, had overstepped by inserting herself into the case and trying to bar the government from using the records in its investigation into whether Trump had illegally kept national security records at Mar-aLago and obstructed the government’s repeated efforts to retrieve them.

The hearing Tuesday was the latest development in the protracted legal fight over Trump’s handling of nearly 13,000 government documents and photographs, including some that were marked as highly classified. It came days after the Justice Department appointed a special counsel, Jack Smith, to oversee the documents investigation and a separate inquiry into Trump’s effort to overturn the 2020 election.

All of the judges on the panel, two of whom were Trump appointees, appeared to support the Justice Department’s overarching argument that Cannon’s appointment of the special master and her efforts to keep the government from using the seized documents seized were highly unusual and wrongly decided.

Lawyers for the department told the panel that there was no precedent for Cannon to have interfered in a case in which charges had not even been filed. The department lawyers also argued that Cannon should not have gotten involved because no evidence existed that the search of Mar-a-lago had been unlawful.

One of the appellate judges, Andrew L. Brasher, pressed James Trusty, a lawyer for Trump, to cite “a single decision by a federal court other than this one” that had issued a ruling in a similar case.

Trusty tried to sidestep that question, suggesting that the Trump legal team may still offer claims that the search was unlawful and noting that a “raid” of a former president’s home was itself unprecedented. But Britt Grant, another Trump- appointed judge, objected to his use of the word “raid.”

William Pryor Jr., an appointee of President George W. Bush, spent much of his time questioning a Justice Department lawyer about whether the best way to get rid of the special master’s review would be to vacate Cannon’s order or to simply reverse it.