By Luke Cohen and Sarah N. Lynch
(Reuters) – Donald Trump’s attempt to prevent a criminal investigation into his possession of documents taken from the White House has begun to unravel, legal experts said, after setbacks in the courtroom, including doubts expressed by judges about the former US president’s claim that he declassified seized documents. at his Florida home.
Trump has faced disappointments on multiple fronts this week as his attorneys attempt to slow down the Justice Department investigation that kicked into high gear with a court-approved search Aug. 8 of his Mar-a- Lago in which FBI agents found 11,000 documents, including about 100 marked as classified.
A three-judge panel of the 11th United States Circuit Court of Appeals, based in Atlanta, ruled on Wednesday that federal investigators could immediately resume reviewing classified records, reversing the decision of the U.S. district judge based in Florida, Aileen Cannon, to withhold these documents while an independent arbitrator assesses whether any should be considered privileged.
“Cannon’s ruling is so far from the norm, and the 11th Circuit has done such a good job of completely dismantling his opinion,” said Jonathan Shaub, a former attorney with the Justice Department’s Office of Legal Counsel who now teaches. law at the University of Kentucky.
Trump could appeal the 11th Circuit’s ruling to the Supreme Court, but experts doubted the justices would agree to hear it. The 11th Circuit panel included two judges appointed by Trump.
At stake in the inquiry — one of many legal issues that bedevil Trump as he considers another presidential bid in 2024 — is whether he violated federal laws preventing the destruction or concealment of government documents and unauthorized possession of national defense information. The Justice Department is also investigating whether Trump unlawfully attempted to obstruct the investigation.
Trump has not been charged with any crime and the mere existence of an investigation does not mean he will be.
As part of Trump’s counterattack on the investigation, he has publicly stated that he has personally declassified the seized records.
“If you’re the president of the United States, you can declassify just by saying it’s declassified, even if you mean it,” Trump told Fox News on Wednesday. “You send it to Mar-a-Lago or wherever you send it, and there doesn’t have to be a process.”
Trump’s lawyers, however, refrained from saying in court that he had declassified the documents, although they did not admit they were classified.
The 11th Circuit called Trump’s declassification argument a “red herring.” The three statutes that underpin the FBI’s search warrant at Mar-a-Lago make it a crime to mishandle government records, regardless of their classification status. The 11th Circuit also said it could not discern why Trump would have “an individual interest or need” for any of the documents marked as classified.
Trump’s attorneys did not immediately respond to a request for comment.
To make matters worse for Trump, Judge Raymond Dearie — the arbitrator, or special master, appointed by Cannon to verify the seized documents — on Tuesday asked Trump’s attorneys why he shouldn’t consider the marked documents to be truly classified. Dearie pressed Trump’s attorneys to clarify whether they plan to claim the records were declassified as Trump claims.
Trump’s lawyers offered Dearie to serve as a special master.
“Unless Trump can provide actual evidence that he went through some kind of declassification procedure and declassified this stuff, there’s no way he can get over that, and get away with it. had he had that evidence, his lawyers would have presented it,” said George Mason University law professor Ilya Somin.
Although he said he declassified the files, Trump also publicly suggested that the FBI deposited them at Mar-a-Lago. Dearie on Thursday asked Trump’s lawyers to provide supporting evidence.
David Laufman, former head of counterintelligence for the Justice Department, said Trump’s comments on Fox News were highly incriminating.
“Prosecutors have to lick their lips every time Trump makes a public statement that amounts to a confession, such as talking about sending documents marked classified to Mar-a-Lago because, according to his account, he thought of them. declassify,” Laufman said.
“It was a great day for the rule of law,” Barbara McQuade, a former federal prosecutor and current University of Michigan law professor, said of the 11th Circuit’s decision. “He says the law matters more than anyone’s loyalty to a particular person.”
(Reporting by Luc Cohen in New York and Sarah N. Lynch in Washington; Editing by Will Dunham)
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