WASHINGTON (Reuters) – The U.S. Justice Department can resume reviewing classified records seized by the FBI from former President Donald Trump’s Florida home pending appeal, a federal appeals court ruled on Wednesday, giving a boost to the criminal investigation to find out if the files have been mishandled or compromised.
The 11th United States Circuit Court of Appeals, based in Atlanta, has granted a request by federal prosecutors to block the stay of U.S. District Judge Aileen Cannon, barring them from using the classified documents in their investigation until an independent arbiter, called a special master, verifies the materials to be eliminated. anything that could be considered confidential and hidden from investigators.
The appeals court also said it would agree to overturn part of the lower court’s order that required the government to turn over records with classification marks for the special master’s review.
“We conclude that the United States would suffer irreparable harm as a result of the District Court’s restrictions on its access to this narrow and potentially critical set of documents, as well as the court’s requirement that the United States submit the classified documents to the special master for review,” the three-judge panel wrote.
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The ruling is “limited in nature,” the panel wrote, because the Justice Department had only requested a partial stay pending appeal, and the panel was unable to rule on the merits of the case itself.
The three judges who made the decision were Robin Rosenbaum, an appointee of former Democratic President Barack Obama, and Britt Grant and Andrew Brasher, both Trump appointees.
Trump’s lawyers could potentially ask the U.S. Supreme Court, whose 6-3 conservative majority includes three justices appointed by him, to intervene in the case.
In documents filed Tuesday, Trump’s lawyers urged the court to keep the stay in place and allow them, under the supervision of special master U.S. Judge Raymond Dearie, to review all documents seized, including those marked classified.
A Justice Department spokesperson had no immediate comment. Trump’s attorneys could not immediately be reached for comment.
In an interview on Fox News on Wednesday night, Trump repeated his claim without proof that he had declassified the documents and said he had the authority to do so “even thinking about it.”
The FBI conducted a court-approved search Aug. 8 of Trump’s home on the Mar-a-Lago estate in Palm Beach, seizing more than 11,000 documents, including about 100 marked as classified.
The search was part of a federal investigation into whether Trump illegally removed documents from the White House when he left office in January 2021 after his failed 2020 re-election bid and whether Trump attempted to obstruct the investigation.
Cannon, herself a Trump appointee, appointed Dearie to serve as special counsel in the case at Trump’s request, despite objections from the Justice Department about a special counsel.
Cannon has instructed Dearie to review all documents, including classified documents, so he can separate anything that might be subject to attorney-client privilege or executive privilege — a legal doctrine that protects certain White House communications. of disclosure.
However, Trump’s attorneys have made no such claims in any of their legal documents, and during a hearing before Dearie on Tuesday they resisted her request to provide evidence that Trump had declassified documents.
Although the appeals court emphasized that its decision was narrow in scope, it nevertheless appeared to strongly rebuke Cannon’s decision from top to bottom and many of Trump’s legal arguments.
“[Trump]did not even attempt to demonstrate that he needed to know the information contained in the classified documents,” the judges wrote. “Nor has it established that the current administration has waived this requirement for these documents.
The Justice Department also raised strong objections to Cannon’s request that Dearie review seized records for documents possibly covered by executive privilege, noting that Trump is a former president and the records do not belong to him.
Although he disagreed, the Justice Department did not appeal that part of Cannon’s order. It’s unclear whether prosecutors can separately seek to appeal other parts of Cannon’s decision on the master’s special appointment.
“We decide only traditional equitable considerations, including whether the United States has demonstrated a substantial likelihood of prevailing on the merits, the harm each party might suffer from a stay, and where the public interest lies,” said the appeals court.
(Reporting by Sarah N. Lynch; Additional reporting by Eric Beech, Mike Scarcella and Jacqueline Thomsen; Editing by Leslie Adler and Shri Navaratnam)
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