Justice department asks court to reject appointment of Trump special master
The US justice department has asked the 11th circuit court of appeals to void the appointment of the special master examining materials seized from Donald Trump’s Mar-a-Lago resort for privilege protections, arguing it impedes the criminal investigation into mishandling of sensitive documents.
In a 53-page brief filed on Friday, the justice department argues that the Trump-appointed US district court judge who oversees the case, Aileen Cannon, should never have granted the former president’s request to have a special master because he failed to demonstrate the need for such a process.
The full appeal from the justice department aims to capitalize on an earlier ruling from the 11th circuit that overturned part of Cannon’s special master order and allowed federal investigators to continue examining 103 documents marked classified while the special master continued reviewing the other documents that were seized.
“This court has already granted the government’s motion to stay that unprecedented order insofar as it relates to the documents bearing classification markings,” said the filing. “The court should now reverse the order in its entirety for multiple independent reasons.”
The justice department contends chiefly that the special master review should be shut down because Cannon misapplied the four-part “Richey” test used to determine whether she could intervene in the matter.
Cannon had determined in her original order that Trump had failed to satisfy the first test – whether he suffered “callous disregard” to his constitutional rights when the FBI searched the property on 8 August and seized thousands of documents – but granted the special master because he had met additional tests.
The justice department, incorporating the 11th circuit’s own reasoning into its argument, said Trump’s failure to satisfy the callous disregard standard alone should have resulted in the denial of his request to have a special master.
Even if the trial judge could be argued to have properly applied the Richey test, the department added, US district courts generally lack the injunctive power to prevent it from examining materials as part of a criminal investigation as Cannon had done.
“District courts have no general equitable authority to superintend federal criminal investigations; instead, challenges to the government’s use of the evidence recovered in a search are resolved through ordinary criminal motion practice if and when charges are filed,” the brief said.
The full appeal seeking the removal of the special master marks a precarious moment for Trump.
Should the 11th circuit rule in favor of the justice department in this request, the former president’s only option to slow down the criminal probe would be to appeal to the US supreme court.
During the time that the seized materials have been before the special master, the justice department has been unable to use the documents in its investigation into the potential willful retention of national defense information, obstruction, and removal of government records.
The decision by the 11th circuit last month to exclude the 103 documents with classified markings from the special master process and allow federal prosecutors to use the records had allowed that part of the probe to recommence.
But the justice department has so far been barred from examining the remaining 11,000 documents seized from Mar-a-Lago that are still being examined by the special master until his review process is complete – an injunction that the government said was impeding the investigation.
The former president is unlikely to succeed at the supreme court should he lose at the 11th circuit, legal experts said – not least after the court swiftly rejected on Thursday his emergency petition asking to re-include the 103 documents marked classified in the special master review.