On Tuesday, the 11th US Circuit Court of Appeals appeared likely to agree with the justice department and limit the particular master review of records the FBI took from Donald Trump’s Mar-a-Lago residence for potential privilege protections.
If Trump is unsuccessful at the hearing, the unique master process he has used to stall and obtain insight into the investigation into his possible misuse of national security material may end.
In Atlanta, Georgia, the three-judge panel, led by chief appellate judge William Pryor, did not issue a judgment from the bench but seemed suspicious that Trump should get special treatment and be able to hinder a criminal investigation because of his status as a former president.
Trump began the afternoon hearing at a disadvantage because Britt Grant and Andrew Brasher, the other two judges on the panel, had previously said in a related appeal that Trump-appointed US judge Aileen Cannon had “abused her discretion” in granting the special master, who is reviewing the materials the FBI seized.
“It’s extraordinary”- Trump’s attorney says
Pryor questioned Trump’s attorney Jim Trusty about whether or not he believed the FBI’s seizure of papers from Mar-a-Lago was potentially improper and, if so, whether or not they had identified any previous example in which the object of a search warrant obtained an injunction.
Pryor stated, “It has to be special,” but he added that there seemed to be nothing out of the norm here than Trump’s status as a former president. Trusty argued that the case was extraordinary and required the appointment of a special master since Trump is a former president. He also suggested that Trump’s legal team feared that the seizure might have been improper.
Pryor, though, did not seem convinced and instead said, “If you can’t establish that, what are we even doing here?” At the hearing, the Department of Justice also argued that Cannon had improperly applied the four-part Richey test she had used to reach her decision and that the 11th Circuit should lift the injunction blocking federal investigators from reviewing the papers under examination by the special master.
Cannon found that Trump did not meet the first Richey test
While Cannon found that Trump did not meet the first Richey test , she did approve his request because she believed he fulfilled the following requirements. Following the rationale of the 11th Circuit Court of Appeals in a previous appeal, the Department argued that the request should have been denied solely because Trump did not meet the “callous disregard” requirement; Trump’s legal team disagreed.
The injunction was issued because a portion of the records seized by federal investigators could not be used as evidence in a prosecution of Trump if he could establish that the executive or attorney-client privilege protected them.
The Department of Justice has taken note of Trump’s attorneys’ claims that the materials at issue are not so much privileged as personal throughout the unique controller process. That’s problematic for Trump because it means the FBI was within its rights when it confiscated the documents during its search.
Trump’s lawyers claimed that some items recovered from Mar-a-Lago could be subject to privilege protections
Trump’s lawyers claimed that some items recovered from Mar-a-Lago could be subject to privilege protections. Therefore, he asked for the appointment of a special master to review the documents shortly after the August 8 search.
After considering Trump’s status as a former president and concluding that he passed the four-part Richey test, Cannon granted the motion and temporarily blocked the Department from using the confiscated materials in its criminal investigation.
The Department of Justice appealed a portion of Cannon’s decision to the Eleventh Circuit Court of Appeals, which ruled in favor of the Government and directed that 103 documents designated classified be omitted from the detailed master review and returned to investigators.
After Trump’s unsuccessful appeal to the Supreme Court, the Department of Justice filed an appeal of the whole particular master order, which included the 11th Circuit’s decisions and its severe condemnation of Cannon as having “abused her discretion.”
The petition from October revealed that the court had previously approved the Government’s motion to delay the unusual decision related to the documents bearing classified markings. There are several different reasons why the court should now reverse the order.