A panel of federal appeals court judges – all appointed by Republican presidents – on Tuesday were dubious of former President Donald Trump’s arguments for why the FBI’s search of Mar-a-Lago required a special master to review the materials that were seized.
During 40 minutes of oral arguments at the 11th US Circuit Court of Appeals, the three-judge panel posed several skeptical questions for the Trump team, suggesting they were not convinced that Trump had shown that an “extraordinary” judicial intervention into the investigation was necessary.
The move by a Florida-based judge to appoint a third party to help decide what of the roughly 22,000 pages of materials obtained in the search belongs in the hands of investigators had thrown a significant wrench in the Justice Department’s criminal investigation into whether records from Trump’s White House were mishandled.
“Other than the fact that this involves a former president, everything else about this … is indistinguishable,” Judge William Pryor, the chief judge of the appellate court, told Trump lawyer James Trusty during the arguments.
“We’ve gotta be concerned about the precedent that we would create that would allow any target of offense of a federal criminal investigation to go into district court and to have a district court entertain this kind of petition, exercise equitable jurisdiction (that allows a court to intervene) and interfere with the executive branch’s ongoing investigation,” Pryor said.
Trump’s argument that the DOJ’s work could violate his constitutional rights is the foundation of why a trial-level judge put on hold parts of the Justice Department’s investigation and appointed a third-party “special master” to sort through thousands of documents that were seized to determine which should be off limits to investigators.
On the panel, Pryor, an appointee of George W. Bush, was most direct to say he disagreed with Trump’s reasoning. Two other judges on the panel, Britt Grant and Andrew Basher, both Trump appointees, previously hinted in a ruling related to the case that they believed the trial-level judge had overreached.
Trusty argued to the court on Tuesday the search and seizure might have violated the former president’s rights, saying the FBI took golf shirts and Celine Dion pictures from the beach home and resort along with documents marked as classified.
The judges pushed back against his characterizations.
“The problem is you know, the search warrant was for classified documents, and boxes, and other items that are intermingled with that. I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents and all kinds of other personal property,” Pryor told Trusty during the arguments.
In a separate exchange, Grant cut Trusty off when he called the August search at Mar-a-Lago a “raid.”
“Do you think a raid is the right term for the execution of a warrant?” Grant asked.
Trusty then apologized for using the “loaded term.”
Prosecutors are examining whether there was obstruction of justice, criminal handling of government records, and violations of the Espionage Act, which prohibits unauthorized storage of national defense information.
The Justice Department has already won a carveout from the 11th Circuit allowing it to continue its investigation into the documents marked as classified.
Now, the Justice Department is asking to throw out the entirety of the special master review, which is being led by Raymond Dearie.
An appeals court decision that got rid of the special master review of the Mar-a-Lago documents would supercharge the pace of government documents investigation, which is in some ways the simplest of the various probes encircling the former president and 2024 candidate.
Special counsel Jack Smith is now overseeing the Mar-a-Lago investigation and the probe into Trump’s efforts after the 2020 election to reverse his electoral defeat.
Panel draw goes against Trump
Grant and Brasher were on the panel that granted the DOJ request in September that it be allowed to restart its criminal investigation into the 100 or so documents marked as classified that the FBI obtained in the search.
In the September ruling signed by Grant and Brasher concerning the classified documents, the appeals court cast doubt on the legal rationale the lower court judge used to appoint the special master.
Because the lower court did not find a “callous disregard” of Trump’s constitutional rights in the search, the 11th Circuit wrote then, that is “reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.”
All three of the judges hearing the appeal on Tuesday had pointed questions for Trump’s team about the lack of evidence that his rights had been violated with the search. Trusty argued that through the special master process, Trump’s lawyers may able to show that the search was unlawful.
“The end object of the search is establish it was an unlawful seizure?” Pryor asked, incredulously.
Grant, meanwhile, asked Trusty whether he thought it was “rare” for a target of a search warrant to think a search warrant was “overreaching.”
Pryor’s facial expressions throughout suggested exasperation with the Trump team’s arguments, as he repeatedly shook his head as Trusty attempted to answer his questions.
When Trusty said it was “no secret” that the Trump team intended to put forward new arguments and motions to challenge the legality of the search as the special master review unfolded, Pryor interjected, “it’s a secret to this record,” referring to the record that the appellate court was tasked with considering.
He also tweaked the Trump’s team’s focus on the personal items of Trump’s – which they say included golf shirts, birthday cards and even a photo of Celine Dion – that were swept up with the search.
“The problem is you know, the search warrant was for classified documents, and boxes, and other items that are intermingled with that. I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents and all kinds of other personal property,” Pryor told Trusty.
Shifting Trump arguments for why the special master is necessary
The decision by US District Judge Aileen Cannon – who sits on the federal court in Fort Pierce, Florida – to appoint a special master attracted criticism from a broad spectrum of legal experts.
When the 11th Circuit in September excluded the documents marked as classified from the review, the three-judge panel implied that the entire appointment of a special master was based on a legally flawed premise. However, it will be a new panel – picked at random – that hears DOJ’s appeal on Tuesday, creating the possibility that the former president will draw judges who are sympathetic to his claims.
Trump asked for the special master because he said that there was a risk that documents by attorney-client privilege or executive privilege were swept up in the search. In his arguments with the appeals court, however, he is focused on a theory that he had the ability to designate as personal the bulk of the documents from the White House. Therefore, Trump argues, the Justice Department has no right to carry on a criminal probe into how the materials have been handled.
“President Trump has an obvious interest in his own personal (and even Presidential) records and the District Court acted within its discretion in recognizing a neutral party was needed to facilitate adjudication of the legal status of the documents,” his lawyer said in a brief with the appeals court.
The Justice Department told the 11th Circuit that Trump’s new theory was “meritless,” “entirely irrelevant” and an argument that the appeals court should not even consider. Prosecutors argue that there was no justification for requiring the review and that the special master process, by holding up the ability of investigators to use the documents in their probe, is causing undue harm to the public’s interest in the speedy administration of criminal law.
Cannon appointed Dearie, a senior judge who sits on Brooklyn’s federal court, to manage the third-party review. Dearie has indicated he’d like to move quickly and has shown little patience for delay tactics from Trump’s team. However, Cannon has intervened at times to tweak his plans, including postponing the end date of the review until at least mid-December. At that point, Dearie will submit a report to Cannon with his recommendations for whom should prevail in the disputes between Trump and the prosecutors over whether certain documents can be used in the investigation, but Cannon will have the final call.
The Justice Department has already returned to Trump a selection of documents that were either legal in nature or were non-govermment records with sensitive personal information, like medical records. At stake now is the more than 2,800 documents obtained in the search that Trump is fighting to keep out of the investigators’ hands.
This story has been updated with additional details.