ATLANTA (CN) — A federal appeals court Tuesday appeared poised to overturn a Florida judge’s order for a special master to review hundreds of records seized from former president Donald Trump’s home.
Government attorney Sopan Joshi told a panel of the Atlanta-based 11th Circuit that the lower court’s decision to grant the former president’s request for a special master review of the seized records was an “extraordinary judicial intrusion.”
Joshi, an assistant to the Solicitor General, said that order should be reversed because U.S. District Judge Aileen Cannon, a Trump appointee, should never have exercised the southern Florida district court’s jurisdiction over the case.
Cannon’s special master order allows the Office of the Director of National Intelligence to keep using all of the more than 11,000 seized documents for its classification review and national security risk assessment but otherwise blocks the Department of Justice and FBI from using them in its criminal investigation over potential mishandling of presidential records until the review is complete or another court order is issued.
The three-judge panel tasked with reviewing Cannon's order during Tuesday’s oral arguments included two Trump-appointed judges, U.S. Circuit Judges Britt Grant and Andrew Brasher, as well as Chief Circuit Judge Bill Pryor, a George H.W. Bush appointee. They granted the Department of Justice's request to keep using the documents with classification markings while the appeal plays out in court, but otherwise blocked the department from using the lion’s share of seized materials in its criminal probe.
Joshi told the panel that the government has already returned to Trump the thousands of seized materials, except the classified materials — which he has copies of.
“[Trump] seems to suggest what he wants is not really the documents back,” Joshi said. “He wants to stop the government from using them.”
The proper remedy for the former president, he added, would be to file a motion to suppress any potential evidence gleaned from the August search, which is one of the already developed legal avenues for what Trump seemingly wants to accomplish.
But Trump’s attorney, Jim Trusty, argued that the motion for judicial oversight was necessary because it was an “initial moment of use of equitable powers.”
Chief Judge Pryor cut him off and asked whether the entire premise of asking the 11th Circuit to establish this “extraordinary kind of jurisdiction” over the lower court’s injunction is part of Trump’s effort to prove that the seizure itself was unlawful.
“And if you can’t establish that, then what are we doing here," the chief judge asked.
According to Trump’s attorney, they are already in the process of doing so.
“We have good reason to think that there’s now evidence of unlawful seizure by way of this being a general warrant," Trusty said.
Trusty conceded that they have not yet established that it was a general warrant but asked how they could establish such facts without having access to the documents.
“We’re talking about a moment in time where Judge Cannon acted with limited discretion, with a limited use of obviously a limited power, to establish a process where we can fully explore it instead of filing … motions claiming constitutional violation," Trusty said.
Trump’s legal team, he said, is trying to prevent the “amputation of a thoughtful process … that allow[s] for this incredibly unusual case to permit that limited moment.”
“It may fall apart,” he noted, since Judge Cannon may ultimately reject jurisdiction over the case at the end.
But the problem for the circuit, Judge Pryor said, is the panel has to determine when it is proper for a district court to issue such an injunction in the first place. And other than the fact that this case involves the former president, he said, everything else about it is indistinguishable from any pre-indictment search warrant.
“We've got to be concerned about the precedent that we would create that would allow any target of a federal criminal investigation to go into a district court and to have a district court entertain this kind of petition ... and interfere with the executive branch's ongoing investigation," Pryor said.
Trump’s attorney said there is greater context to this case than others because this is a situation in which a political rival of the sitting president has been subjected to a search warrant where thousands of personal materials have been taken.
“We can't ignore that in the context of equity, which consider[s] certain things, such as the impact on the community when it comes to their view of the criminal justice system," Trusty said.
Trump is under investigation by the Department of Justice for the removal of government records from the White House at the end of his single term as president on Jan. 20, 2021.
The FBI raided the Mar-a-Lago compound on Aug. 8 and seized 20 boxes of documents, including 11 sets of classified documents, according to records unsealed by the district court. Among the more than 11,000 seized files were the grant of clemency to the former president's close ally Roger Stone, binders of photos and what is described as “info re: President of France.”
Last week, Attorney General Merrick Garland appointed special counsel Jack Smith to oversee the Department of Justice investigations into potential mishandling of presidential records stored at Trump’s home and any interference with the transfer of power following the 2020 election. Garland's appointment news came shortly after Trump announced he's running for another term as president in 2024.
Oral arguments Tuesady lasted about 40 minutes. It is not clear when the appellate court will issue a ruling.
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