Appeals court says DOJ can pursue criminal investigation into Trump documents

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An aerial view of former President Donald Trump’s Mar-a-Lago club in Palm Beach, Florida on August 31. A federal judge appointed Raymond Dearie, a seasoned New York lawyer, to serve as an independent arbiter and review records seized during an FBI search of former President Donald Trump’s home last month. (Steve Helber, Associated Press)

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WASHINGTON — In a stark rejection of Donald Trump’s legal arguments, a federal appeals court on Wednesday allowed the Justice Department to resume its use of classified records seized from the former president’s estate in Florida as part of its ongoing criminal investigation.

The decision by a three-judge panel of the United States Court of Appeals for the 11th Circuit represents a landslide victory for the Justice Department, clearing the way for investigators to continue reviewing the documents as they consider to bring criminal charges for storing top-secret files at Mar-a-Lago after Trump left the White House. By lifting the suspension of a key aspect of the department’s investigation, the court removed an obstacle that could have delayed the investigation for several weeks.

The appeals court also pointedly noted that Trump had presented no evidence that he had declassified the sensitive records, as he argued as recently as Wednesday, and dismissed the possibility that Trump may have a “self-interest or a need for” the approximately 100 documents with classification marks that were seized by the FBI during its Aug. 8 search of the Palm Beach property.

The government had argued that its investigation had been hampered and national security concerns brushed aside by an order from U.S. District Judge Aileen Cannon that temporarily barred investigators from continuing to use the documents in her investigation. Cannon, a Trump appointee, had said the suspension would remain in place pending a separate review by an independent arbitrator she appointed at the request of the Trump team to review the records.

The appeal panel shared the Department of Justice’s concerns.

“It stands to reason that the public has a vested interest in ensuring that the storage of classified documents does not result in ‘unusually serious harm to national security,'” they wrote. “Ensuring this,” they added, “necessarily involves reviewing records, determining who accessed them and when, and deciding which sources or methods (if any) are compromised.”

An injunction that delays or prevents the criminal investigation “from using classified materials risks imposing real and substantial harm on the United States and the public,” they wrote.

Two of the three judges who handed down Wednesday’s ruling — Britt Grant and Andrew Brasher — were appointed to the 11th Circuit by Trump. Judge Robin Rosenbaum was appointed by former President Barack Obama.

Pages of a ruling from the United States Court of Appeals for the 11th Circuit in Atlanta that lifts a judge's grip on the Justice Department's ability to use classified documents seized by the FBI in Trump's Mar-a-Lago estate, are pictured on Wednesday.  The decision clears the way for the department to immediately resume its use of the documents in its investigation.
Pages of a ruling from the United States Court of Appeals for the 11th Circuit in Atlanta that lifts a judge’s grip on the Justice Department’s ability to use classified documents seized by the FBI in Trump’s Mar-a-Lago estate, are pictured on Wednesday. The decision clears the way for the department to immediately resume its use of the documents in its investigation. (Photo: Jon Elswick, Associated Press)

Trump’s lawyers did not return an email asking them to comment on whether they would appeal the decision. The Department of Justice did not immediately comment.

Last month, the FBI seized about 11,000 documents, including about 100 with classification marks, in a search authorized by the Palm Beach club court. He has launched a criminal investigation into whether the records were mishandled or compromised, but it is unclear whether Trump or anyone else will be charged.

Cannon decided Sept. 5 that it would appoint an independent arbitrator, or special master, to conduct an independent review of these records and separate those that may be covered by claims of attorney-client privilege or executive privilege and to determine if any of the materials should be returned to Trump.

Raymond Dearie, the former Brooklyn-based federal court chief justice, was named to the post and held his first meeting Tuesday with attorneys for both sides.

The Justice Department had argued that a special lead review of classified documents was unnecessary. He said Trump had no plausible basis for claiming executive privilege over the documents, nor could the records be covered by attorney-client privilege because they did not involve communications between Trump. and his lawyers.

He had also challenged Cannon’s order requiring him to provide lawyers for Dearie and Trump with access to classified documents. The court sided with the Justice Department on Wednesday, saying “courts should only order examination of these documents in the most extraordinary circumstances. The record does not support a conclusion that this is of such a circumstance”.

Trump has repeatedly maintained that he declassified the material. In a Fox News Channel interview recorded Wednesday ahead of the appeals court ruling, he said, “If you’re the President of the United States, you can declassify just by saying ‘It’s declassified’.”

Although his lawyers said a president has absolute power to declassify information, they notably refrained from claiming that the documents had been declassified. The Trump team this week resisted providing Dearie with information to support the idea that the records could have been declassified, saying the issue could form part of their defense if indicted.

The Justice Department said there was no evidence that Trump took steps to declassify the documents and even included a photo in a court filing of some of the seized documents with stained cover pages indicating their classified status. The Court of Appeal, too, made the same observation.

“Plaintiff suggests he may have declassified these documents when he was president. But there is no evidence on file that any of these documents were declassified,” the judges wrote. “In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or make it personal.”

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