In a sweeping rejection of Donald Trump’s legal arguments, a federal appeals court on Wednesday allowed the US Justice Department to resume using classified records seized from the former president’s Florida estate as part of his ongoing criminal investigation. The decision by a three-judge panel of the U.S. Court of Appeals for the 11th Circuit amounts to a landslide victory for the Justice Department, clearing the way for investigators to continue examining the documents as they consider whether to pursue criminal charges over the storage of top-secret files in Mar -a-Lago after Trump left the White House. In removing a key aspect of the department’s investigation, the court removed a hurdle that could have delayed the investigation by weeks, if not months. The appeals court also noted that Trump had not presented evidence that he had declassified the sensitive files, as he has repeatedly claimed, and dismissed the possibility that Trump could have a “personal interest or need in” the roughly 100 classified documents. seized by the FBI in its August 8 search of the Palm Beach property. The government had argued that its investigation had been obstructed and national security concerns sidelined, with an order by US District Judge Aileen Cannon temporarily barring investigators from continuing to use the documents in its investigation. Cannon, a Trump appointee, had said the pledge would remain in place pending a separate review by an independent arbitrator she had appointed at the request of the Trump team to review the records. The appeals panel agreed with the Justice Department’s concerns. “It goes without saying that the public has a strong interest in ensuring that the storage of classified records did not result in ‘extremely serious harm to national security,’” they wrote. “Determining this,” they added, “necessarily involves examining the documents, determining who had access to them and when, and deciding which (if any) sources or methods were compromised.” An order that delayed or prevented a criminal investigation “from the use of classified materials risks inflicting real and substantial harm on the United States and the public,” they wrote. Two of the three judges who issued Wednesday’s ruling — Britt Grant and Andrew Brasher — were nominated to the 11th Circuit by Trump. Judge Robin Rosenbaum was nominated by former US President Barack Obama. Trump’s lawyers did not return an email seeking comment on whether they will appeal the ruling. The Justice Department had no immediate comment. The FBI last month seized about 11,000 documents, including about 100 with distinctive markings, during a court-authorized search of the Palm Beach club. A criminal investigation has been launched into whether the records were tampered with or tampered with, although it is unclear whether Trump or anyone else will be charged. Cannon decided on Sept. 5 that it will appoint an independent arbitrator, or special master, to conduct an independent review of those records and separate any that may be covered by claims of attorney-client privilege or executive privilege and determine whether any of the materials should be returned to Trump. Raymond Dearie, the former chief judge of the Brooklyn-based federal court, was named to the role and held his first meeting Tuesday with lawyers from both sides. The Justice Department had argued that a special general review of classified documents was not necessary. It said Trump had no reasonable basis to invoke executive privilege over the documents, nor could the records be covered by attorney-client privilege because they do not include communications between Trump and his lawyers. He had also challenged Cannon’s order requiring her to provide lawyers for Dearie and Trump with access to the classified material. The court sided with the Justice Department on Wednesday, saying “courts should order review of such materials only in the most extraordinary circumstances. The record does not support the conclusion that such a circumstance exists.” Trump’s lawyers had argued that an independent review of the records was necessary given the unprecedented nature of the investigation. The lawyers also said the department had yet to prove the seized documents were classified, although they have not claimed — as Trump has repeatedly — that the records were previously declassified. The Trump team this week resisted providing Dearie with any information to support the idea that the records may have been declassified, signaling that the issue could be part of their defense in the event of an indictment. But the appeals court appeared to scoff at that argument. “Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified,” they wrote. “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.” ——– Colvin reported from New York.
