The ruling — issued by the circuit court’s Chief Judge William Pryor, a George W. Bush appointee, and two of Trump’s own appeals court picks — represents another major setback for the former president and a clear victory for the Justice Department. Prosecutors had been using those records as part of a criminal investigation into alleged retention of national security information, theft of government records and obstruction of justice.
Trump can appeal the ruling to either the full bench of the 11th Circuit Court of Appeals or the Supreme Court, but both prospects are seen as a long-shot.
Trump has complained bitterly about the federal investigation, decrying it as a weaponization of the justice system. But the appeals judges concluded that the special master process was not warranted because Trump’s attorneys failed to show that law enforcement acted with “callous disregard” for his rights.
The panel said that instead Trump was seeking a special carve-out for former presidents to receive exceptional treatment that others facing similar searches would not. Such special treatment was not warranted, the judges ruled.
“It is indeed extraordinary for a warrant to be executed at the home of a former president — but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation,” they contended.
The ruling appears likely to bring an end to Trump’s most successful legal gambit of his post-presidency: An effort by his lawyers made to U.S. District Court Judge Aileen Cannon, a Trump appointee, to effectively put the Mar-a-Lago probe under court supervision by constraining and delaying the inquiry.
The 11th Circuit’s decision comes just nearly two weeks after Attorney General Merrick Garland appointed a former head of the Justice Department’s public corruption section, Jack Smith, to serve as a special counsel overseeing the Mar-a-Lago probe as well as an investigation into alleged efforts by Trump and his allies to interfere with the certification of the 2020 presidential election.
The appeals court’s ruling sidelines U.S. District Court Judge Raymond Dearie, the jurist Cannon tapped to serve as special master in the case. Dearie has been hard at work in the case, commissioning a former magistrate judge to aid in the review of the records and working toward a mid-December deadline to resolve disputes between Trump and the Justice Department over the documents.
Trump’s attorneys have argued that the Justice Department acted inappropriately by using a search warrant issued by a magistrate judge to seize the records from Trump’s Palm Beach, Fla. home rather than using a civil-suit mechanism included in the Presidential Records Act. The former president’s lawyers have also asserted that he effectively converted the records from official to personal property by taking them to Florida and keeping them after he left office.
But prosecutors contend that other legal options have no bearing on their ability to seize evidence with the court’s blessing as part of a criminal investigation. They’ve also rejected Trump’s executive privilege claims, saying that doctrine has no relevance when the records are sought or obtained by the executive branch.
The appeals court panel emphasized repeatedly that it viewed Cannon as taking unprecedented steps to aid Trump.
On multiple occasions, “the district court stepped in with its own reasoning” to land on Trump’s side of the argument — even offering positions that Trump himself didn’t echo in his appeal.
The panel emphasized that Trump’s belated attempt to contend that his records were personal property — and not presidential records — has no bearing on whether the FBI was permitted to seize them pursuant to a lawful search warrant.
“If there has been no constitutional violation — much less a serious one — then there is no harm to be remediated in the first place,” the panel ruled.
Cannon’s order imposing the special master received sharp criticism from an unusually broad spectrum of the legal community.
Liberal lawyers and defense attorneys noted that such oversight is rarely imposed when sought by targets of criminal investigations, with the rare exceptions almost always involving searches of law offices. Conservative attorneys who back strict separation-of-powers principles complained that the process Cannon ordered intruded on the executive branch’s right to pursue its investigation without interference from the judiciary.
Prosecutors won an earlier round of the legal fight at the 11th Circuit two months ago, when a three-judge panel unanimously agreed to a stay that effectively carved out from the special master process about 100 documents with classification markings such as “top secret.”
That ruling, which amounted to a withering rebuke of Trump’s position and Cannon’s order, restored the government’s ability to continue its investigation into the national security implications of highly-sensitive documents being in unsecure spaces at Mar-a-Lago, which functions as Trump’s home, post-presidency office and a private club.
Two of the judges on the panel which issued the most recent decision–Grant and Brasher–were also on the one that granted the government’s emergency stay request. Their selection for the broader case signaled that Trump was likely to face an uphill battle.
