The US justice department is scheduled to ask a court on Tuesday to void the special master review examining documents seized from Donald Trump’s Mar-a-Lago residence and make the materials available to the criminal investigation surrounding the former president.
The hearing is particularly consequential for Trump: should he lose, it could mark the end of the special master process on which he has relied to delay, and gain more insight into, the investigation surrounding his potential mishandling of national security information.
In a 40-page brief filed in advance of an expedited afternoon hearing in the 11th circuit court of appeals, the department argued that Trump should never have been able to get an independent arbiter because the federal judge who granted the request misapplied a four-part legal test in making her judgment.
The department also argued that the 11th circuit should terminate the injunction preventing federal investigators from examining the documents in the special master review since Trump appeared to drop his claims that some of the materials are subject to privilege protections.
“Absent any likelihood of any success in the merits of the claim, there is no justification for an injunction,” the department wrote in its brief, as it sought the appeals court to reverse the entirety of the Trump-appointed US district court judge Aileen Cannon’s special master order.
At issue is the original rationale for the special master. Cannon determined Trump failed to satisfy the first Richey test – whether he suffered “callous disregard” to his constitutional rights when the FBI searched Mar-a-Lago – but granted Trump’s request since she felt he met additional tests.
The department – echoing the 11th circuit’s own reasoning in an earlier appeal – has said Trump’s failure to satisfy that callous disregard standard alone should have resulted in the denial of the request, though the former president’s legal team contested that interpretation.
But even if Cannon had correctly applied Richey, the department argued, she was wrong to prevent it from accessing the materials under review.
The injunction was handed down on the basis that if Trump was able to show that a proportion of documents were protected by executive or attorney-client privilege, then they could not part of the evidence cache obtained by federal investigators in the event of prosecution.
Yet in the course of the special master process, the department noted, Trump’s lawyers have claimed the documents were not so much privileged, but personal. If that was true, the trouble for Trump is that then they would have been lawfully seized in the FBI search.
Trump requested the appointment of a special master to examine the documents seized from Mar-a-Lago – including 103 bearing classified markings – shortly after the 8 August search because, his lawyers claimed at the time, some of the materials could be subject to privilege protections.
The request was granted by Cannon, who gave exceptional deference to Trump on account of his status as a former president in deciding that he satisfied the four-part Richey test, and temporarily barred the department from using the seized materials in its criminal investigation.
But the department appealed part of Cannon’s order to the 11th circuit, which sided with the government and ordered the 103 documents marked classified to be excluded from the special master review and returned to investigators, criticizing Cannon for granting the review in the first place.
That prompted Trump to unsuccessfully appeal to the supreme court – while the department then appealed the entirety of the special master order, incorporating the 11th circuit’s rulings and its scathing rebuke of Cannon as having “abused her discretion” in court filings.
“This court has already granted the government’s motion to stay that unprecedented order insofar as it relates to the documents bearing classification markings,” the department wrote in an October filing. “The court should now reverse the order in its entirety for multiple independent reasons.”