Federal appeals judges appeared skeptical Tuesday that former President Trump should have been awarded a third-party special master to review the documents stored in his Florida home as the Justice Department works to nullify the appointment.
Lawyers for the DOJ and Trump appeared before a three-judge panel of the 11th Circuit Court of Appeals in Atlanta, the latest battleground as the Justice Department seeks to expedite its access to more than 22,000 pages of government documents stored at Mar-a-Lago.
The arguments did not seem to bode well for the Trump team, with one of the judges asking amid the arguments, “What are we doing here?”
On the bench were two Trump appointees — Judge Britt Grant and Judge Andrew Brasher — who previously sided with the Justice Department, granting its request to siphon off the classified materials from the special master review and allowing them to be turned over to investigators.
But the Justice Department hopes to more quickly gain access to the remaining documents in order to inform its investigation, potentially speeding ahead of likely ongoing legal challenges to the review by Judge Raymond Dearie, the special master.
Trump attorney James Trusty was almost immediately interrupted by Grant after he referred to the search of Trump’s home as a raid, apologizing for using “a loaded term” after the judge inquired whether deeming it the execution of a search warrant would be more accurate.
And at another point, Chief Judge William Pryor, a George W. Bush appointee, questioned why Trump should be entitled to a special review of the contents collected during the search at his home when few other criminal defendants — let alone those who have yet to be charged — are afforded a similar process.
“Other than the fact that this involves the former president, everything else about this is indistinguishable from any pre-indictment search warrant,” Pryor said.
“And we’ve got to be concerned about the precedent that we would create that would allow any targets of a federal criminal investigation to go into a district court and to have a district court entertain this kind of petition … and interfere with the executive branch’s ongoing investigation.”
Trusty struggled to answer the judge’s questions about prior case law, noting the novel nature of the search of the home of a former president.
“It’s not special treatment. It’s just basic facts of where we are. This is a situation where a political rival has been subjected to a search warrant [where] thousands of personal materials have been taken,” he said.
But at another point, Pryor seemed irritated that Trusty had not demonstrated the ability to meet one of the key tests when seeking the return of seized property — that the government showed a callous disregard for a plaintiff’s constitutional rights.
“The entire premise of the exercise of this extraordinary kind of jurisdiction would be that the seizure itself is unlawful,” he said.
“And if you can’t establish that, then what are we doing here?”
The Justice Department on Tuesday pushed back against the use of a special master,
“What he wants is not really the documents back. As I said, he already has them back,” Sopan Joshi argued on behalf of the government.
“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,” he added, noting such a move would usually come through a motion to suppress evidence at a later stage.
Joshi also argued that Trump’s attorneys had laid out a dizzying list of supposed privileges to justify scheduling the records from prosecutors.
Trump’s attorneys, Joshi said, initially raised attorney-client privilege issues only to later bring up executive privilege issues, then claimed some of the documents may have been declassified, then moving to claim some of the presidential records could be his personal property.
“This just sort of emphasizes how anomalous and extraordinary what the district court did here was,” he said.
The hearing was the latest development in the Mar-a-Lago case since Attorney General Merrick Garland announced the appointment of a special counsel, Jack Smith, to take over both the documents investigation and the DOJ investigation into the events of the Capitol riot.
In court, Trump’s lawyers also argued their position was weakened as they have yet to gain access to an un-redacted copy of the warrant used to gain access to Trump’s property.
Trump’s team filed a motion to Florida District Court Judge Aileen Cannon – who first appointed the special master – to force DOJ to release the warrant, but it’s unclear if such a motion should be directed to Judge Bruce Reinhart, who first approved the document.
Dearie, the special master, is set to hold a status conference with the two sides next week, where Trusty said they will review some 930 remaining documents.
“The big swaths of that will be decided with a legal ruling rather than kind of a one-by-one look at the document,” he said.
Updated 5:03 p.m.