- An appeals court panel grilled a Trump lawyer but had few questions for the Justice Department.
- The hearing came in Trump’s dispute over the investigation into his handling of classified records.
- One judge scolded Trump’s lawyer for referring to the FBI search of Mar-a-Lago as a “raid.”
A federal appeals court panel appeared skeptical Tuesday of arguments Donald Trump has raised against the Justice Department in its mounting investigation of the former president’s handling of classified documents at his South Florida home and private club.
In a brief oral argument, Trump lawyer James Trusty said the US Court of Appeals for the 11th Circuit should preserve a vetting process for thousands of records seized from Mar-a-Lago, which the Justice Department argues has slowed its investigation. Under that process, an outside arbiter — known as a special master — has reviewed the materials to determine whether some are covered by legal protections and should be excluded from the Justice Department’s inquiry.
Arguing before a three-judge 11th Circuit panel, Trusty said “there’s also not a situation in the history of this country where a sitting President authorized a raid of a presidential candidate’s home.”
“This is a situation where a political rival has been subjected to a search warrant with 1000s of personal materials have been taken. We can’t ignore that,” Trusty added.
But his arguments met sharp questioning from the three-judge 11th Circuit panel, which included a George W. Bush appointee and a pair of Trump appointees. The panel, including Chief Judge William Pryor, appeared sympathetic to the Justice Department’s argument that the special master review represented an “intrusion” into its investigation.
Pryor, a Bush appointee confirmed in 2004, raised concerns about the precedent the 11th Circuit would set in blessing the special master review, which Judge Aileen Cannon granted at Trump’s request in September.
“Other than the fact that this involves a former president, everything else about this is indistinguishable from any pre-indictment search warrant,” Pryor said. “And 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.”
Trusty bemoaned the breadth of the FBI search, saying that agents seized golf shirts and even photographs of Celine Dion — “things that were pre-presidential and things that were post-presidential.” He said federal investigators received “carte blanch” from the federal magistrate judge who approved the search.
But Pryor suggested that Trump had himself to blame for the seizure of any personal items.
“I don’t think it’s necessarily the fault of the government,” he said, “if someone has intermingled classified documents in all kinds of other personal property.”
Trusty met resistance even over word choice. At one point, after he referred to the FBI’s search of Mar-a-Lago as a “raid,” Judge Britt Grant questioned the appropriateness of that term.
“Do you think that ‘raid’ is the right term for execution of a warrant?” asked Grant, a Trump appointee who clerked for Supreme Court Justice Brett Kavanaugh during his tenure on the US Court of Appeals for the DC Circuit.
Trusty apologized for using a “loaded term.”
The 11th Circuit panel included another Trump appointee, Judge Andrew Brasher. In a previous ruling, Grant and Brasher ruled against Trump and allowed the Justice Department to regain access to about 100 documents that were marked as classified.
With its arguments Tuesday, the Justice Department went further to effectively ask the 11th Circuit to remove the special master, Judge Raymond Dearie, a semiretired veteran of the federal trial court in Brooklyn. The Justice Department has pushed to undo Dearie’s appointment even as it has cooperated with the special master review, which is set to end in December.
The closely watched arguments unfolded before the 11th Circuit, in Atlanta, just days after Attorney General Merrick Garland appointed a longtime war crimes and public-corruption prosecutor, Jack Smith, as special counsel to oversee investigations involving Trump. With the appointment, Smith immediately came to oversee the investigation into Trump’s hoarding of classified documents at Mar-a-Lago, along with a separate inquiry into efforts to overturn the 2020 election.
Trump lashed out against the special counsel appointment as “disgraceful.” Smith, who has served in The Hague since 2018 as chief prosecutor of war crimes committed in Kosovo, is beginning his work from the Netherlands as he recovers from injuries suffered in a bike accident.
During Tuesday’s arguments, Justice Department lawyer Sopan Joshi likened Trump’s arguments to “shifting sands,” saying that the former president had initially claimed seized records were subject to attorney-client privilege.
“And then executive privilege was introduced, even though I’m not sure why that would preclude the executive branch’s own use of the documents in an investigation,” he said.
At the Supreme Court, he said, Trump’s lawyers then argued that the dispute centered on the issue of whether classified documents had been declassified. On Tuesday, Joshi noted, Trump’s lawyers raised arguments about whether seized items were “presidential or personal.”
Joshi said that series of arguments underscored that the special master review ordered by Cannon was “anomalous and extraordinary.”
On Monday, a day before going before the 11th Circuit, the Justice Department said in a court filing that Smith had reviewed and approved the arguments it planned to raise at the hearing.