A three-judge panel issued a ruling Thursday that a special master should not have been appointed to review materials the FBI seized from former President Trump’s Mar-a-Lago estate, a decision that ends the outside review of thousands of documents that has delayed for months a criminal investigation into the former president’s handling of classified information after leaving office.
The decision allows the Justice Department to resume using those materials as part of its investigation into whether Trump illegally kept classified records after leaving office and obstructed the FBI’s attempts to recover them.
U.S. District Judge Aileen Cannon had ordered the government not to use the materials while the review took place, limiting what evidence the department could access during its investigation.
During brief arguments before the U.S. 11th Circuit Court of Appeals in Atlanta last week, the three judges suggested that Trump and his legal team, in challenging the search warrant executed at his home long before charges had been brought, wanted special treatment that would not have been granted to any other American. They also said that the case did not appear to clear the bar for appointing a special master, a type of independent expert used in some legal cases.
The judges also expressed concern that allowing Judge Cannon’s decision to stand would set a precedent that would allow other people under investigation to ask courts to limit law enforcement access to evidence before any indictments had been handed down.
Thursday’s unanimous 21-page ruling says that Cannon never had jurisdiction to approve the special master review or order the government to stop using the documents.
“It is indeed extraordinary for a warrant to be executed at the home of a former president — but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation,” states the ruling, which orders Cannon to dismiss the case.
“The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so,” the ruling states. “Either approach would be a radical reordering of our case law limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations.”
The three members of the 11th Circuit panel were all appointed by Republicans. Chief Judge William Pryor was appointed by former President George W. Bush. Judges Britt Grant and Andrew Brasher were appointed by Trump.
The panel withheld the effect of its opinion for seven days to give Trump time to decide whether to seek a rehearing before the full 11th Circuit bench or to appeal to the Supreme Court.
Trump previously asked the Supreme Court to overturn an earlier appeals court decision to withhold about 100 classified documents from the special master’s review. The justices declined, without dissent.
Before the ruling, special master Judge Raymond J. Dearie was deep into the process of reviewing more than 22,000 records seized by the FBI during a court-approved Aug. 8 search of Trump’s Florida property. Dearie had asked the Justice Department and Trump’s lawyers to resolve questions over about 900 documents by Thursday. The special master’s initial review was expected to end in mid-December.
Trump has claimed that the majority of the disputed documents are personal rather than presidential records. The latter were supposed to be turned over to the National Archives in accordance with the Presidential Records Act. The Justice Department has argued that the materials are evidence, regardless of whether they are personal or presidential.
But whether the documents at issue are presidential or personal has no bearing on whether the government can take them pursuant to a lawful search warrant, the 11th Circuit panel said in its ruling.
“The status of a document as personal or presidential does not alter the authority of the government to seize it under a warrant supported by probable cause; search warrants authorize the seizure of personal records as a matter of course,” the ruling states. “The Department of Justice has the documents because they were seized with a search warrant, not because of their status under the Presidential Records Act.”
For months, the outside review has impeded the Justice Department’s investigation into the more than 13,000 documents, photographs and other items — including over 100 documents marked classified — that FBI agents removed from Trump’s Florida estate during their search.
The warrant for the search was approved by a magistrate judge after the FBI made repeated attempts to quietly reclaim the classified documents and uncovered evidence that some still remained at Mar-a-Lago. In November, Atty. Gen. Merrick Garland named a special prosecutor, Jack Smith, to lead that investigation.
Several witnesses connected to the investigation, including prominent former Trump aides, have appeared in front of a grand jury in federal district court in Washington in recent days.