DOJ Appeals Mar-A-Lago Special Master Order After Judge Sides With Trump

Topline

The Justice Department asked the 11th Circuit Court of Appeals Thursday to block a third-party special master from reviewing classified documents it seized at former President Donald Trump’s Mar-A-Lago estate, after a Trump-appointed judge in Florida rejected the DOJ’s request to hang on to the classified materials—and delayed its investigation until November.

President Donald Trump’s Mar-a-Lago estate in Palm Beach, Florida, on Aug. 31.

Key Facts

The DOJ asked the appeals court to block U.S. District Judge Aileen M. Cannon’s order that barred the agency from reviewing approximately 100 classified documents while a special master goes through them, saying that order “hamstrings” its investigation and would “irreparably harm” the government and the public by delaying the probe and forcing the disclosure of classified materials.

The DOJ had said it would appeal Cannon’s order granting a special master to review the Mar-A-Lago documents if she didn’t walk it back by allowing the agency to hang on to the classified documents—which she didn’t.

Cannon ruled Thursday that former U.S. District Judge Raymond Dearie—whom she appointed as special master—will review even classified documents, rejecting the DOJ’s request because the agency “presupposes” that all the documents are classified and aren’t covered by executive or attorney-client privilege, which she didn’t agree with.

Trump’s attorneys argued that documents marked classified shouldn’t be withheld from the special master because Trump could have declassified them—but the lawyers didn’t actually say he did declassify any, and legal experts believe Trump likely couldn’t have declassified documents without following proper protocols.

Cannon’s ruling Thursday and initial order granting a special master—which said not doing so could result in Trump facing “reputational harm”—have been widely derided by legal experts, with former federal prosecutor Andrew Weissman describing Thursday’s ruling on MSNBC as “outrageous and stupid, frankly.”

Crucial Quote

Cannon’s order “irreparably harms the government by enjoining critical steps of an ongoing criminal investigation and needlessly compelling disclosure of highly sensitive records, including to [Trump’s] counsel,” the DOJ argued in its appeal.

What To Watch For

It’s still unclear how long the 11th Circuit could take to rule on the case or how they’ll go—especially considering that a majority of judges on that court were appointed by Trump. If Cannon’s order remains in place, Dearie has been directed to review the documents and filter out privileged materials by November 30, prioritizing classified materials so that Cannon might be able to release those to the DOJ earlier.

Surprising Fact

Though Cannon’s ruling on Thursday largely sided with Trump, the judge did rule he must pay for the entire cost of the special master’s review, rather than splitting the costs with the DOJ as Trump had asked.

Key Background

Trump asked Cannon to appoint a special master two weeks after the FBI searched Mar-A-Lago on August 8. The search was part of an ongoing DOJ investigation into whether Trump bringing the more than 11,000 White House documents back to Florida with him, rather than turning them over to the National Archives, violated federal laws concerning the mishandling of government and national security documents. The DOJ has also alleged Trump may have obstructed the government’s investigation, as Trump’s attorneys did not turn over all the classified documents they had despite being subpoenaed to do so, and did not follow the DOJ’s request to keep all documents stored in a secure storage area. Federal prosecutors have fought Trump’s request for a special master, arguing that it would hinder the investigation by delaying it and that Trump does not have the right to shield documents under executive privilege from the actual executive branch.