In a strongly worded 29-page ruling, the United States Court of Appeals for the 11th Circuit vacated key parts of a Florida federal judge’s ruling that blocked the department from using about 100 redacted records in its investigation into whether Mr. Trump retained illegal national defense documents and thwarted repeated attempts to retrieve them. The appeals court also agreed with the Justice Department that Mr. Trump’s lawyers — and an independent arbitrator recently appointed to review the seized materials — need not review classified documents the FBI ordered from Mr. Trump’s estate, the Mar-a-Lago. , on August 8. The Justice Department “argues that the district court likely erred in exercising its jurisdiction to compel the United States to use the classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review”. wrote a three-judge panel of the appeals court. “We agree.” The Atlanta-based court’s ruling was a repudiation of Judge Aileen M. Cannon, whom Mr. Trump appointed to the Federal District Court for the Southern District of Florida, to broadly intervene in the Justice Department’s investigation. The appeals decision will allow the arbitrator, known as a special master, to review most of the more than 11,000 files seized from Mar-a-Lago, but will allow prosecutors unlimited access to the smaller batch of classified records. The appeals court consisted of two other Trump appointees, Judges Britt Grant and Andrew L. Brasher, and Judge Robin S. Rosenbaum, an Obama appointee. The controversy over the records stems from Judge Cannon’s decision to install a special master to filter the documents seized during the Mar-a-Lago search for any privileged documents. He also barred criminal investigators from using the material until the review is complete, and rejected a Justice Department request to exempt the roughly 100 files that had been designated as classified from that process. The appeals court ruled hours after New York’s attorney general sued Mr. Trump after conducting a separate political investigation into what he described as fraudulent business practices. A lawyer for Mr. Trump did not immediately respond to a request for comment, including whether he would appeal to an appeals court or the Supreme Court. In its original filing with the appeals court, the Justice Department agreed to a broad examination of the documents by the special master, narrowly tailoring its request to those marked classified in hopes of restoring quick access to the material at the heart of his investigation. Prosecutors argued that Judge Cannon’s temporary ban on allowing them to use the classified material would prevent a separate assessment by the intelligence community of the national security risks posed by Mr. Trump’s amassing of records.
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The appeals court agreed with the Justice Department’s argument that prosecutors needed access to the classified material to aid the national security audit. He also strongly pushed back against Mr. Trump’s efforts to claim publicly — but not in court — that he had declassified the sensitive files at issue. Mr. Trump “suggests that he may have declassified these documents when he was president,” the appeals court wrote. “But the file contains no evidence that any of those files were declassified.” The court went on to say, “In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or make it personal.” The ruling will significantly streamline the process now underway before the special master, Judge Raymond J. Dearie, whom Mr. Trump’s lawyers had nominated for the role. If true, Judge Dearie will no longer need to review materials marked classified, although he will still oversee the review of the larger trove. Mr. Trump “has not even attempted to show that he has a need to know the information contained in the classified documents,” the appeals court wrote. “Nor has he demonstrated that the current administration has waived this requirement for these documents. And even if he had, that alone would not explain why plaintiff has a vested interest in the classified documents.” The ruling was the latest twist in what began as a legal sideshow in the investigation into Mr Trump’s retention of sensitive government documents. In mid-August, Mr. Trump’s legal team filed a lawsuit seeking to bar the Justice Department from cooperating with the documents. His lawyers also asked for a special master with broad powers to review the records for any attorney-client privilege or executive privilege. But the FBI had already conducted a separate review to identify records that might be subject to attorney-client privilege. And Mr. Trump’s demand for a sweeping review, which is subject to claims of executive privilege, was unusual, prosecutors said, noting there was no precedent or legal basis for it. But Judge Cannon granted Mr. Trump’s request. During a hearing before Judge Dearie on Tuesday, lawyers for both sides clashed over whether Mr Trump’s legal team should be allowed to see the files. A Justice Department lawyer said some of the records were so restricted that a top-secret clearance alone would not be considered sufficient to view them. “Some of the documents are so sensitive that even members of the team investigating possible wrongdoing here have not yet been given permission to see those documents,” said the attorney, Julie Edelstein. Another point of contention was whether Judge Dearie could require Mr. Trump or his representatives to declare definitively whether he had taken steps to declassify the materials. Mr. Trump has publicly claimed that he declassified everything he took from the Oval Office, but no credible evidence has emerged to support that claim, and his representatives have not repeated it in court, where lying is a crime. Instead, they merely hinted that Mr. Trump could have. Mr. Trump’s lawyers have argued that it would be premature to disclose such information because it could be a defense if Mr. Trump is later indicted. But the 11th Circuit’s decision to remove documents marked as classified from the master’s special review means Judge Dearie doesn’t have to deal with any litigation for now. The court’s comments about the lack of evidence to support Mr. Trump’s suggestion that he may have declassified the documents dovetail with a remark by Judge Dearie on Tuesday. The special master suggested that the former president’s lawyers could not credibly suggest that Mr. Trump might have declassified the records without at some point filing a formal affidavit that he had actually done so. “You can’t have your cake and eat it too,” he said.
