Trial & Litigation
Classified documents seized from Trump can now be used in a criminal investigation, under 11th Circuit rules
Updated: The U.S. Department of Justice has successfully secured a partial stay of a ruling by U.S. District Judge Aileen M. Cannon of the Southern District of Florida in litigation over documents seized from the Mar- a-Lago by former President Donald Trump in Palm Beach, Florida. .
The 11th United States Circuit Court of Appeals in Atlanta ruled on Wednesday that the DOJ may use seized classified documents in its criminal investigation, and that such documents should not be turned over to Senior U.S. District Judge Raymond J. Dearie, the special master reviewing documents for privilege claims.
The appeals court considered four factors to determine whether the government was entitled to the partial suspension pending appeal.
On the first factor, the 11th Circuit ruled that the government had established a substantial likelihood of success on the merits of its claims regarding the classified documents.
“For our part,” the appeals court said, “we cannot discern why the plaintiff would have an individual interest in or need for any of the 100 documents with classification marks.”
Trump “did not even attempt to show that he needed to know the information contained in the classified documents. Nor did he establish that the current administration waived this requirement for these documents. … The plaintiff suggests that he may have declassified these documents when he was president. But there is no evidence in the file that any of these documents were declassified. And before the special master, the plaintiff resisted giving any evidence that he had declassified one of these documents…. In any event, at least for these purposes, the argument of declassification is a red herring because the declassification of an official document would not modify its contents nor wouldn’t make it personal.
Of the other three factors, the 11th Circuit concluded that:
• The United States would suffer irreparable harm in the absence of a stay. The government has a compelling interest in protecting the secrecy of information important to national security, the appeals court said.
• Trump has not shown he will suffer a significant injury as a result of the limited stay. Trump has no possessory interest in the classified documents, and there is no reason to expect that the government’s use of the documents would risk leaking inside information, the 11th Circuit said.
• The public interest favors a stay. “It goes without saying that the public has a vested interest in ensuring that the storage of classified documents does not result in ‘unusually serious damage to national security,'” the appeals court said. “Ensure that this necessarily involves reviewing documents, determining who accessed them and when, and deciding which sources or methods (if any) are compromised.
The September 21 curiam opinion was written by Justices Robin S. Rosenbaum, Britt C. Grant and Andrew L. Brasher.
Trump said in a Fox News interview on Wednesday that he declassified the documents upon leaving the White House, according to The New York Times and The Washington Post.
“I declassified the documents when they left the White House,” Trump said. “There doesn’t need to be a process as I understand it. You are the President of the United States, you can declassify… even thinking about it.
Trump also said in media interviews and on social media that the FBI planted objects and that the government said documents were classified that were in fact declassified, according to Washington Post.
cannon changed his order Thursday to comply with the 11th Circuit’s decision.
Dearie followed up Thursday with an order requiring Trump to back up or disavow the hidden documents and declassification allegations. Dearie said Trump had until September 30 to submit an affidavit or statement list:
• Items from the inventory of government property that he did not seize during the August 8 search of Trump’s Mar-a-Lago home.
• A list of government inventory items that have an incorrect government description of contents or incorrect location description found.
• A list of items seized that did not appear in the property inventory.
ABAJournal.com: ‘After Trump Makes Claims About Hidden, Declassified Documents, Special Master Seeks Details’
ABAJournal.com: “Will Trump be indicted in the Mar-a-Lago documents case? His lawyers see a possibility, oppose a special request for master’
ABAJournal.com: “Who filed a false document in the Trump Mar-a-Lago case?”
ABAJournal.com: “Trump Requests Special Master to Review Documents Seized by FBI”
ABAJournal.com: ‘DOJ files motion to unseal warrant, property receipt relating to search of Trump’s home’
ABAJournal.com: “Trump Search Warrant Sworn Statement, Released By Order Of Judge, Cites Sensitive Documents, Possible Obstruction”
ABAJournal.com: “Meet Raymond Dearie, the judge chosen to oversee the Mar-a-Lago document review”
ABAJournal.com: “The Judge Who Signed Trump’s Search Warrant Is Targeted; critics seek ‘God’s judgment'”
ABAJournal.com: “Could Trump be banned from office if found guilty of taking government documents?
Updated Sept. 22 at 1:09 p.m. and 3:50 p.m. to include information about U.S. District Judge Aileen M. Cannon’s amended order and Senior U.S. District Judge Raymond J. Dearie’s new order.