A federal appeals court on Wednesday allowed the Justice Department to start using the secret documents that had been taken from the former president’s Florida mansion as part of its continuing criminal investigation, in a clear rejection of Donald Trump’s legal claims.
The Justice Department has won a resounding victory thanks to the decision of a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, which opens the door for investigators to keep looking into the records as they decide whether to file criminal charges regarding the storage of top-secret records at Mar-a-Lago after Trump left the White House. By removing a barrier that may have prevented the inquiry from moving forward for weeks or perhaps months, the court lifted a hold on a crucial component of the department’s investigation.
The appeals court sternly rejected the idea that Trump might have a “individual interest in or need for” the roughly 100 documents with classification markings that were seized by the FBI in its Aug. 8 search of the Palm Beach property and pointedly noted that Trump had not provided any evidence that he had declassified the sensitive records, despite his repeated claims to the contrary.
The government had contended that a ruling by U.S. District Judge Aileen Cannon that temporarily prohibited investigators from using the records in their probe had hindered their investigation and disregarded national security considerations. The hold would continue, according to Cannon, a Trump appointment, until a second examination of the data by an impartial arbitrator she convened at the request of the Trump campaign.
The appeals panel concurred with the worries raised by the Justice Department.
The public has a great interest in making sure that the keeping of the secret documents did not cause “exceptionally grave damage to the national security,” they stated in their letter. Finding that out “necessarily includes studying the papers, figuring out who had access to them and when, and figuring out which (if any) sources or methods are compromised,” they continued.
An order that “risks imposing real and severe injury on the United States and the public” by delaying or prohibiting the criminal investigation from using classified documents, they said.
Britt Grant and Andrew Brasher, two of the three justices who ruled on Wednesday, were picks by Trump for the 11th Circuit. Former President Barack Obama suggested Judge Robin Rosenbaum.
Trump’s attorneys did not respond to a request for comment via email on whether they will appeal the decision. There was no immediate reaction from the Justice Department.
Approximately 11,000 papers, including about 100 with classified marks, were taken by the FBI last month during a court-ordered search of the Palm Beach club. Although it is unclear whether Trump or anybody else would face charges, a criminal inquiry has been opened to determine whether the documents were handled improperly or corrupted.
On September 5, Cannon issued a decision stating that she would appoint an independent arbiter, or special master, to review those records independently, separate any that may be subject to claims of attorney-client privilege or executive privilege, and determine whether any materials should be returned to Trump. After being appointed to the position, Raymond Dearie, a former chief judge of the federal court in Brooklyn, met for the first time on Tuesday with representatives from both sides.
A special master review of the top-secret papers, according to the Justice Department, was not required. Neither the presidential privilege nor the attorney-client privilege could apply to the information since there were no conversations between Trump and his attorneys, according to the report.
It had also opposed Cannon’s directive that it provide Dearie and Trump’s attorneys access to the secret information. On Wednesday, the court took the Justice Department’s side, ruling that “courts should require consideration of such information in only the most unusual situations.” The evidence does not support the conclusion that such a situation exists.
Given the unique nature of the probe, Trump’s attorneys had claimed that an impartial examination of the materials was vital. The attorneys also stated that the agency had not yet established that the seized papers were classified, but they notably refrained from making the same claim that Trump has often made that the records had previously been declassified.
This week, the Trump campaign refused to give Dearie any proof that the documents would have been made public, indicating that they might use this as part of their defense if they were ever charged with a crime.
However, the appeals court seemed to dismiss that claim.
Plaintiff claims that while serving as President, he may have declassified these records. However, there is no indication in the record that any of these records were declassified, they said. “In any case, the declassification argument is a red herring, at least for these reasons, since declassifying an official document would not alter its substance or make it personal.”
