Trump docs probe: Court lifts hold on Mar-a-Lago records

The ruling is a victory for the Justice Department, which clears the way for it to reuse the documents when considering whether to press criminal charges.

WASHINGTON — In a flagrant rejection of Donald Trump’s legal arguments, a federal appeals court on Wednesday allowed the Justice Department to resume its use of classified records seized from the former president’s estate in Florida as part of its ongoing criminal investigation.

The ruling by a three-judge panel of the US Circuit Court of Appeals for the 11th Circuit amounts to a resounding victory for the Justice Department and paves the way for investigators to continue examining the documents while considering whether to press criminal charges for their preservation top secret records in Mar-a-Lago after Trump left the White House. By overturning a key aspect of the department’s investigation, the court removed an impediment that could have delayed the investigation by weeks, if not months.

The appeals court also specifically noted that Trump had not presented any evidence that he had released the sensitive recordings, as he has repeatedly claimed, and dismissed the possibility that Trump had an “individual interest in or need for” the approximately 100 documents with classification marks seized by the FBI during its August 8 search of the Palm Beach property.

The government had argued that its investigations had been hampered and national security concerns brushed aside by an order by US District Judge Aileen Cannon temporarily barring investigators from continuing to use the documents in their investigations. Cannon, a Trump appointee, had said the hold would remain pending a separate review by an independent arbitrator she appointed at the request of the Trump team to review the records.

The Appellate Body agreed with the Justice Department’s concerns.

“It goes without saying that the public has a vested interest in ensuring that the preservation of classified information has not resulted in ‘extraordinarily serious harm to national security,'” they wrote. “Determining 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 material risks causing real and significant harm to the United States and the public,” they wrote.

Two of the three judges who issued Wednesday’s verdict — Britt Grant and Andrew Brasher — were nominated by Trump for the 11th district. Judge Robin Rosenbaum was nominated by former President Barack Obama.

Trump’s attorneys did not respond to an email asking for comment on whether they would appeal the verdict. The Justice Department had no immediate comment.

The FBI seized about 11,000 documents, including about 100 with non-disclosure marks, in a court-authorized search of the Palm Beach Club last month. It has launched a criminal investigation to determine whether the records were mishandled or compromised, though it’s not clear if Trump or anyone else will be charged.

Cannon ruled on September 5 that she would appoint an independent arbitrator or special master to conduct an independent review of those records and segregate any that might be covered by attorney-client privilege or board-client privilege claims and to determine whether any of the materials should be returned to Trump. Raymond Dearie, the former Chief Justice of the Brooklyn Federal Court, was appointed to the role and held his first meeting with attorneys from both sides on Tuesday.

The Justice Department had argued that a special master’s examination of classified information was not required. 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 attorneys.

It had also challenged Cannon’s order requiring Dearie and Trump’s attorneys to have access to the classified material. The court sided with the Justice Department on Wednesday, saying: “Courts should only order the review of such materials in the most exceptional circumstances. The record does not allow the conclusion that such a circumstance is involved.”

Trump’s lawyers had argued that an independent review of the records was essential given the unprecedented nature of the investigation. The lawyers also said the department has yet to prove the seized documents were classified, although most importantly they have stopped claiming – as Trump has repeatedly done – that the records were previously declassified.

The Trump team this week refused to provide Dearie with any information that might support the idea that the recordings might have been declassified, signaling that the issue could be part of their defense if indicted.

But the Court of Appeal seemed to scoff at that argument.

“The plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of those records were declassified,” they wrote. “In any case, the declassification argument is a red herring, at least for these purposes, since declassifying an official document would neither change its content nor make it personal.”

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