DOJ can pursue criminal investigation using classified Mar-a-Lago documents and appeals court rules


AAn appeals court granted the Justice Department’s request for a partial stay of a lower court order, now allowing the DOJ to continue its criminal investigation using allegedly classified documents the FBI seized from the home of former President Donald Trump at Mar-a-Lago.

The three-judge panel’s decision was a victory for the DOJ, with the appeals court also reversing Judge Aileen Cannon’s ruling that the DOJ should provide approximately 100 documents with classified marks to a special master for independent review. .

“We decide only the narrow question presented: whether the United States has established that it is entitled to a stay of the district court order, insofar as (1) it compels the government to submit to the ‘special master’s review of the documents with classification and (2) prohibits the United States from using this subset of the documents in a criminal investigation,’ the three judges of the 11th U.S. Circuit Court of Appeals wrote Wednesday evening. We conclude that is the case.”

Cannon, a Florida District Court judge who appointed Judge Raymond Dearie as special master earlier this month, ruled that she “temporarily prohibits the government from reviewing and using seized documents for investigation pending completion of the special master’s review or other court order”. .”

Her decision “will not preclude” the classification review and intelligence assessment being conducted by the Office of the Director of National Intelligence regarding records seized in the unprecedented August raid, she said in the statement. ‘arrangement.


But the DOJ, which quickly appealed the order to the 11th Circuit, said the suspension of the The FBI Criminal Investigation while continuing separately ODNIdamage assessment was essentially impossible.

“The intelligence community’s review and assessment cannot be easily separated from the activities of the Department of Justice and the Federal Bureau of Investigation as part of the ongoing criminal investigation, and the uncertainty regarding the limits of the court order and its implications for FBI activities has caused the intelligence community, in consultation with the DOJ, to temporarily suspend this critically important work,” the DOJ argued this month. “Furthermore, the government and the public are irreparably harmed when a criminal investigation into matters involving national security risks is ordered.”

The circuit judges who unanimously sided with the Obama-appointed DOJ Robin Rosenbaum and Trump appointees Britt Grant and André Brasheragreed with the DOJ that Cannon “probably erred” in its decision to suspend the DOJ’s criminal investigation and asked prosecutors to allow Dearie to review the 100 documents with classified marks independently.

Trump and some allies have argued the former president declassified documents at his Florida home during the search, but the DOJ has repeatedly pointed out that declassification requests do not appear in Trump’s legal documentstelling the appeals court this week that Trump “demonstrably fails to represent, let alone show, that he actually took that step.”

Dearie, who was chosen to be the special master last week after being promoted by Trumpsuggested to the former president’s lawyers during a Tuesday hearing that Trump must provide proof of downgrading or the judge may have to assume that the records seized by the FBI are indeed classified.

Trump’s lawyers told Dearie they were hesitant to detail what Trump might have declassified because that topic could end up being part of their defense against future indictment by the DOJ.

Jim Trusty, an attorney for the former president, argued that “we are not in a position – nor should we be able at this stage – to fully disclose a substantive defense.” Dearie replied, “My view is this: You can’t have your cake and eat it.”

The appeals court panel appeared to agree with Dearie’s skepticism of Trump’s arguments.

“[Trump] did not even attempt to demonstrate that he needed to know the information contained in the classified documents,” the circuit judges said in their lengthy opinion on Wednesday. “Nor has it established that the current administration has waived this requirement for these documents. And even if he had, that in itself wouldn’t explain why. [Trump] has a personal interest in classified documents.

The Court of Appeal added: “[Trump] suggests he may have declassified these documents when he was president. But the file contains no evidence that any of these documents have been declassified. And before the special master, [Trump] resisted providing any evidence that he had declassified any of these documents.

The circuit judges also echoed the DOJ’s position that Trump’s declassification claims were a “red herring.”


Trump’s legal team had unsuccessfully sought to dismiss the appeals court.

“This investigation into the 45th President of the United States is both unprecedented and flawed,” Trump’s lawyers argued before circuit judges on Tuesday. “In what is at its core a dispute over document storage that has spiraled out of control, the government is wrongfully seeking to criminalize the 45th President’s possession of his own presidential and personal records.”

Trump’s team had argued that the appeals court “should respectfully decline the government’s invitation to proceed directly to a pre-determined conclusion.”


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