WASHINGTON, Sept 21 (Reuters) – The U.S. Justice Department can continue its review of classified files seized by the FBI from former President Donald Trump’s Florida home pending an appeal, a federal appeals court ruled on Wednesday, boosting a criminal investigation into whether files have been mishandled or compromised. The 11th U.S. Circuit Court of Appeals, based in Atlanta, granted a request by federal prosecutors to block U.S. District Judge Aileen Cannon’s stay from using the classified documents in their investigation until an independent arbitrator, called a special master , review the materials to eliminate any that could be considered privileged and rejected by the investigators. The appeals court also said it would agree to overturn a portion of the lower court’s ruling that required the government to turn over classified records for the master’s special review. Sign up now for FREE unlimited access to Reuters.comSign up “We conclude that the United States will be irreparably harmed by the district court’s limitations on its access to this narrow — and potentially critical — set of materials, as well as by the court’s requirement that the United States submit the classified records to the special master for criticism,” wrote the three-member panel of judges. The panel added that the decision is “limited in nature” as the Justice Department had only requested a partial stay pending appeal and that the panel was unable to rule on the merits of the case itself. The department’s request to the court had not sought to overturn Cannon’s order itself, and it is unclear whether prosecutors can separately seek to appeal other parts of Cannon’s decision to appoint the special master. “We decide only on the traditional grounds of equity, including whether the United States has shown a substantial likelihood of prevailing on the merits, the harm each party might suffer from the stay, and where the public interest lies,” the appeals court said. The three judges who made the decision were Robin Rosenbaum, an appointee of Democratic former President Barack Obama, and Britt Grant and Andrew Brasser, both appointed by Trump. Trump’s lawyers could potentially ask the US Supreme Court, whose conservative 6-3 majority includes three justices appointed by him, to intervene in the matter. In filings Tuesday, Trump’s lawyers urged the court to keep the stay in place and allow them under the supervision of special master U.S. Magistrate Judge Raymond Dearie to review all seized material, including classified material. A Justice Department spokesman had no immediate comment. Trump’s lawyers could not immediately be reached for comment. The FBI conducted a court-authorized search Aug. 8 at Trump’s Mar-a-Lago estate in Palm Beach, seizing more than 11,000 documents, including about 100 that had been marked classified. The investigation was part of a federal probe into whether Trump illegally removed documents from the White House when he left office in January 2021 after his unsuccessful 2020 election and whether Trump tried to obstruct the investigation. Cannon, herself a Trump appointee, appointed Dearie to serve as a special master in the case at Trump’s request. The Ministry of Justice had opposed the appointment of a special master. Cannon instructed Dearie to review all the material, including classifieds, so he could separate out anything that might be subject to attorney-client privilege or executive privilege — a legal doctrine that protects certain White House communications from disclosure. As one of his defenses, Trump claimed in social media posts without evidence that he declassified the files. But his lawyers have made no such allegations in any of their legal filings, and during a hearing before Dearie on Tuesday, they resisted his request to provide evidence that Trump had declassified any records. read more Although the appeals court emphasized that its ruling was limited in scope, it nonetheless appeared to strongly rebuke Cannon’s ruling from top to bottom and many of Trump’s legal arguments. “[Trump]he has not even attempted to show that he has a need to know the information contained in the classified documents,” the judges wrote. “Nor has he demonstrated that the current administration has waived that requirement for those documents.” The Justice Department previously strongly objected to Cannon’s demand that Dearie review the seized records for documents possibly covered by executive privilege, noting that Trump is a former president and the records do not belong to him. While it disagreed, however, the Justice Department did not appeal that portion of Cannon’s order. Sign up now for FREE unlimited access to Reuters.comSign up Report by Sarah N. Lynch? additional reporting by Eric Beech, Mike Scarcella, and Jacqueline Thomsen. Editor: Leslie Adler Our Standards: The Thomson Reuters Trust Principles.
