WASHINGTON — A special master review of documents taken from former President Donald Trump’s Mar-a-Lago estate should not have been approved, the Department of Justice argued in its first filing in the appeal to the 11th U.S. Circuit Court of Appeals in Atlanta.
The department is asking the court to overturn U.S. District Judge Aileen Cannon’s decision to appoint a special master to review more than 13,000 records retrieved during the Aug. 8 search of the Florida property by the FBI, and block the department from using any of the documents for its investigation until the monthslong process ends.
The appellate court has agreed to expedite consideration of the case. Trump’s lawyers must file their response by Nov. 10.
The department argued in its filing that Cannon should not have even entertained appointing a special master because Trump couldn’t meet the standard for doing so, namely proving that the government showed a “callous disregard” for his rights in executing the court-approved search of the property, a fact she acknowledged in her order granting the special master. Cannon said that Trump met the other standards required of him in the matter.
“The records at issue here are the documents recovered pursuant to that court-approved warrant, after earlier attempts to retrieve them had failed. The district court accordingly determined that Plaintiff had demonstrated no ‘callous disregard’ of his rights,” the filing states, noting that the 11th Circuit pointed that out in an early decision in this case. “And as the (11th Circuit) Court held, that by itself is sufficient reason to conclude that the district court erred in exercising jurisdiction over this action.”
In the filing, the department states that the recovered documents are “the very objects” of an “ongoing criminal investigation.”
“The Court should therefore reverse the district court’s injunction and end the special master’s review,” the filing states.
The appellate court already granted the department’s request to withhold about 100 classified documents from the special master’s review and overturned Cannon’s order preventing the department from using those records as part of its investigation during the review. The Supreme Court on Thursday rejected Trump’s request to intervene in the dispute over whether the special master should examine the classified documents.
In Friday’s filing, the department extensively quotes from the circuit court’s previous opinion ruling that the government could use classified material found in the search in its criminal investigation.
Cannon named Raymond Dearie, a senior judge of the U.S. District Court for the Eastern District of New York, as special master, and the review of the more than 20,000 pages of documents has already begun. The special master is supposed to set aside any materials that Trump says are protected from the investigation by claims of attorney-client or executive privilege, and recommend to Cannon how the documents should be categorized. The process is expected to be completed in December.
The department repeated its assertion that “a former President cannot successfully assert executive privilege to prevent the Executive Branch from reviewing its own record,” an argument Cannon has not resolved in her orders.
The Justice Department used the filing to clarify that the search recovered about 13,000 documents totaling approximately 22,000 pages. Cannon used the Trump team’s estimate of 220,000 pages as justification for extending the timeline originally set by Dearie by two weeks.
