High court rejects Donald Trump’s plea to step into Mar-a-Lago case
The Supreme Court on Thursday rejected former President Donald Trump’s plea to step into the legal fight over the FBI search of his Florida estate. The justices did not otherwise comment on turning away Trump’s emergency appeal. Trump had pressed the court on an issue relating to classified documents seized in the search authorized by a federal judge of Mar-a-Lago. The Trump team was asking the justices to overturn a lower court ruling and permit an independent arbiter, or special master, to review the roughly 100 documents with classified markings that were taken in the August 8 search of Mar-a-Lago. The move Thursday appears to greatly reduce the potential impact of the special master process to the ongoing Justice Department criminal investigation into the classified documents. A federal appeals court had already restored the department’s access to the classified documents, which had been the investigators’ primary goal. And the Supreme Court’s decision to stay out of the fray ensures that the special master will not have access to those same records as the FBI and Justice Department evaluate if criminal charges are merited. A three-judge panel from the Atlanta-based U.S. Court of Appeals for the 11th Circuit last month limited the special master’s review to the much larger tranche of non-classified documents. The judges, including two Trump appointees, sided with the Justice Department, which had argued there was no legal basis for the special master to conduct his own review of the classified records. But Trump’s lawyers said in their application to the Supreme Court that it was essential for the special master to have access to the classified records to “determine whether documents bearing classification markings are in fact classified, and regardless of classification, whether those records are personal records or Presidential records.” The Justice Department said in a Supreme Court filing that Trump’s request had no merit. The FBI says it seized roughly 11,000 documents, including about 100 with classification markings, during its search. The Trump team asked a judge in Florida, Aileen Cannon, to appoint a special master to do an independent review of the records. Cannon subsequently assigned a veteran Brooklyn judge, Raymond Dearie, to review the records and segregate those that may be protected by claims of attorney-client privilege and executive privilege. The Justice Department objected to Dearie’s ability to review the classified records, prompting the 11th Circuit to side with the department. The department also is appealing Cannon’s entire ruling to the 11th Circuit. Republished with the permission of The Associated Press.
Court lifts hold on Mar-a-Lago records
In a stark repudiation of Donald Trump’s legal arguments, a federal appeals court on Wednesday permitted the Justice Department to resume its use of classified records seized from the former president’s Florida estate as part of its ongoing criminal investigation. The ruling from a three-judge panel of the U.S. Court of Appeals for the 11th Circuit amounts to an overwhelming victory for the Justice Department, clearing the way for investigators to continue scrutinizing the documents as they consider whether to bring criminal charges over the storage of top-secret records at Mar-a-Lago after Trump left the White House. In lifting a hold on a core aspect of the department’s probe, the court removed an obstacle that could have delayed the investigation by weeks. The appeals court also pointedly noted that Trump had presented no evidence that he had declassified the sensitive records, as he maintained as recently as Wednesday, and rejected the possibility that Trump could have an “individual interest in or need for” the roughly 100 documents with classification markings that were seized by the FBI in its August 8 search of the Palm Beach property. “If you’re the president of the United States, you can declassify just by saying, ‘It’s declassified.’ Even by thinking about it…You’re the president; you make that decision,” Trump claimed in a Fox News Channel interview recorded Wednesday before the appeals court ruling. The government had argued that its investigation had been impeded, and national security concerns swept aside, by an order from U.S. District Judge Aileen Cannon that temporarily barred investigators from continuing to use the documents in its inquiry. Cannon, a Trump appointee, had said the hold would remain in place pending a separate review by an independent arbiter she had appointed at the Trump team’s request to review the records. The appeals panel agreed with the Justice Department’s concerns. “It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in ‘exceptionally grave damage to the national security,’” they wrote. “Ascertaining that,” they added, “necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised.” An injunction that delayed or prevented the criminal investigation “from using classified materials risks imposing real and significant 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 President Barack Obama. Lawyers for Trump did not return an email seeking comment on whether they would appeal the ruling. The Justice Department did not have an immediate comment. The FBI last month seized roughly 11,000 documents, including about 100 with classification markings, during a court-authorized search of the Palm Beach club. It has launched a criminal investigation into whether the records were mishandled or compromised, though is not clear whether Trump or anyone else will be charged. Cannon ruled on September 5 that she would name an independent arbiter, or special master, to do an independent review of those records and segregate any that may be covered by claims of attorney-client privilege or executive privilege, and to determine whether any of the materials should be returned to Trump. Raymond Dearie, the former chief judge of the federal court based in Brooklyn, has been named to the role and held his first meeting on Tuesday with lawyers for both sides. The appeals court ruling appears to substantially narrow the special master’s job description, enabling the Justice Department to avoid providing him with classified documents to review. Instead, Dearie would review the much larger tranche of non-classified government documents. The Justice Department had argued that a special master review of the classified documents was not necessary. It said Trump had no plausible basis to invoke executive privilege over the documents, nor could the records be covered by attorney-client privilege because they do not involve communications between Trump and his lawyers. It had also contested Cannon’s order requiring it to provide Dearie and Trump’s lawyers with access to the classified material. The court sided with the Justice Department on Wednesday, saying “courts should order review of such materials in only the most extraordinary circumstances. The record does not allow for the conclusion that this is such a circumstance.” Though Trump’s lawyers have said a president has absolute authority to declassify information, they have notably stopped short of asserting that the records were declassified. The Trump team this week resisted providing Dearie with any information to support the idea that the records might have been declassified, saying the issue could be part of their defense in the event of an indictment. The Justice Department has said there is no indication that Trump took any steps to declassify the documents and even included a photo in one court filing of some of the seized documents with colored cover sheets indicating their classified status. The appeals court, too, made the same point. “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,” the judges 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 render it personal.” Republished with the permission of The Associated Press.
Arbiter in Donald Trump docs probe signals intent to move quickly
The independent arbiter tasked with inspecting documents seized in an FBI search of former President Donald Trump’s Florida home said Tuesday he intends to push briskly through the review process and appeared skeptical of the Trump team’s reluctance to say whether it believed the records had been declassified. “We’re going to proceed with what I call responsible dispatch,” Raymond Dearie, a veteran Brooklyn judge, told lawyers for Trump and the Justice Department in their first meeting since his appointment last week as a so-called special master. The purpose of the meeting was to sort out next steps in a review process expected to slow by weeks, if not months, the criminal investigation into the retention of top-secret information at Mar-a-Lago after Trump left the White House. As special master, Dearie will be responsible for sifting through the thousands of documents recovered during the Aug. 8 FBI search and segregating those protected by claims of executive privilege or attorney-client privilege. Though Trump’s lawyers had requested the appointment of a special master to ensure an independent review of the documents, they have resisted Dearie’s request for more information about whether the seized records had been previously declassified — as Trump has maintained. His lawyers have consistently stopped short of that claim, even as they have asserted that a president has absolute authority to declassify information. They said in a separate filing Tuesday that the Justice Department had not proven that the records remained classified. “In the case of someone who has been president of the United States, they have unfettered access along with unfettered declassification authority,” one of Trump’s lawyers, James Trusty, said in court Tuesday. But Dearie said that if Trump’s lawyers will not actually assert that the records have been declassified, and the Justice Department instead presents an acceptable case that they remain classified, then he would be inclined to regard them as classified. “As far as I’m concerned,” he said, “that’s the end of it.” In a letter to Dearie on Monday night, the lawyers said the declassification issue might be part of Trump’s defense in the event of an indictment. Trusty said in court Tuesday that the Trump team should not be forced at this point to disclose a possible defense based on the idea the records had been declassified. He denied that the lawyers were trying to engage in “gamesman-like” behavior but instead believed it was a process that required “baby steps.” He said the right time for the discussion is whenever Trump presses forward with a claim to get any seized property back. Dearie said he understood the position but observed: “I guess my view of it is, you can’t have your cake and eat it” too. The resistance to the judge’s request was notable because it was Trump’s lawyers, not the Justice Department, who had requested the appointment of a special master and because the recalcitrance included an acknowledgment that the probe could be building toward an indictment. Despite the focus on whether the seized documents are classified or not, the three statutes the Justice Department listed on a warrant as part of its investigation do not require that the mishandled information be classified in order to initiate a prosecution. The Trump team has also questioned the feasibility of some of the deadlines for the special master’s review. That work includes inspecting the roughly 11,000 documents, including about 100 marked as classified, that were taken during the FBI’s search. U.S. District Judge Aileen Cannon, a Trump appointee who granted the Trump team’s request for a special master, had set a November 30 deadline for Dearie’s review and instructed him to prioritize his inspection of classified records. The Justice Department has asked a federal appeals court to halt Cannon’s order requiring it to provide him with classified documents for his review. That appeal is pending. Dearie, a Ronald Reagan appointee whose name is on the atrium of his Brooklyn courthouse, made clear during Tuesday’s meeting that he intended to meet the deadlines, saying there was “little time” to complete the assigned tasks. Julie Edelstein, a Justice Department lawyer, said she was hopeful that the department could get the documents digitized and provided to Trump’s lawyers by early next week. She noted that the department had given the legal team a list of five vendors approved by the government for the purposes of scanning, hosting, and otherwise processing the seized records. After some haggling, Dearie instructed Trusty’s lawyers to choose a vendor by Friday. Earlier Tuesday, the Trump legal team urged the U.S. Court of Appeals for the 11th Circuit to leave in place Cannon’s order temporarily barring the Justice Department’s use of the classified records for its criminal investigation while Dearie completes his review. The department has said that the order has impeded its investigation into the presence of top-secret information at Mar-a-Lago. Trump’s lawyers called those concerns overblown, saying investigators could still do other work on the probe even without scrutinizing the seized records. “Ultimately, any brief delay to the criminal investigation will not irreparably harm the Government,” Trump’s lawyers wrote. “The injunction does not preclude the Government from conducting a criminal investigation, it merely delays the investigation for a short period while a neutral third party reviews the documents in question.” Republished with the permission of The Associated Press.
