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11th Circuit Allows DOJ to Review Mar-a-Lago Docs for Criminal Investigation, Partially Staying Judge Cannon’s Order for Special Master

Donald Trump

Former President Donald Trump spoke at a rally on September 17, 2022 in Youngstown, Ohio. (Photo by Jeff Swensen/Getty Images.)

The 11th Circuit Court of Appeals is allowing federal prosecutors to resume their review of documents seized from former President Donald Trump‘s Mar-a-Lago residence that were marked classified, issuing an opinion Wednesday that also blocks them from having to release the documents to the newly appointed special master and Trump’s lawyers.

The ruling grants a motion for a partial stay filed Friday by the U.S. Department of Justice, with a three-judge panel concluding that “the public interest favors a stay” and agreeing with prosecutors that U.S. District Judge Aileen M. Cannon “likely erred” when she blocked them from using classified records in its criminal investigation and required them to submit them to a  special master.

“It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in ‘exceptionally grave damage to the national security,'” according to the opinion, quoting a declaration from Alan E. Kohler Jr., assistant director of the FBI’s Counterintelligence Division. “Ascertaining that necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised.”

The panel also said Cannon’s decision to permit national intelligence officers to continue their risk review regarding the seized material while enjoining the DOJ from further reviewing anything is based on a distinction that “is untenable.”

Through Kohler’s declaration, “the United States has sufficiently explained how and why its national-security review is inextricably intertwined with its criminal investigation,” the panel said, citing an obligation to “accord substantial weight to an agency’s affidavit” when national security issues are involved.

“No party has offered anything beyond speculation to undermine the United States’s representation—supported by sworn testimony—that findings from the criminal investigation may be critical to its national-security review,” according to the 29-page opinion from Judges Robin S. Rosenbaum, a 2014 Barack Obama appointee; Elizabeth “Britt” Cagle Grant, a 2018 Trump appointee; and Andrew L. Brasher, a 2020 Trump appointee.

The panel also dismissed Trump’s argument that he would be “substantially” harmed by a stay, writing that because he “does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in.” The judges also said his argument that he would be harmed by a criminal investigation is “unpersuasive,” quoting a 1940 U.S. Supreme Court case Cobbledick v. United States, “Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.”

But they embraced the DOJ’s argument that allowing the special master and Trump’s lawyers to review the classified materials would cause irreparable harm, citing the 1988 U.S. Supreme Court ruling  in Department of the Navy v. Egan that “the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.”

“As a result, courts should order review of such materials in only the most extraordinary circumstances,” according to the opinion. “The record does not allow for the conclusion that this is such a circumstance.”

The FBI seized about 11,000 documents and 1,800 other items from Mar-a-Lago while serving a search warrant on Aug. 8. Among the boxes were 13 containing documents with classification markings “and three classified documents were found in plaintiff’s desks,” according to Wednesday’s opinion.

“All told, the search uncovered over one-hundred documents marked confidential, secret, or top secret,” the judges wrote. In recounting the procedural history, the opinion states that the district court when granting Trump’s request for a special master said Trump “might be able to assert executive privilege against the current President.”

The DOJ turned to the 11th Circuit after Cannon, a 2020 Trump appointee in the Southern District of Florida, rejected prosecutors’ request for a stay and appointed Senior U.S. District Judge Raymond J. Dearie as special master. Dearie, a 1986 Ronald Reagan appointee, was one of two suggestions put forth by Trump’s lawyers. He held his first conference in the case on Tuesday at the Eastern District of New York’s Brooklyn federal courthouse, where he was based until going inactive last month.

Prosecutors were supported at the 11th Circuit by a group of state and federal officials who submitted an amicus brief that said Cannon cited no authority to support her claim that Trump may have a “possessory interest” in the material. Trump’s team, meanwhile, had a supporting amicus brief from a group of Republican attorneys general that said the Biden administration’s “conduct in connection with this case is of a piece with the gamesmanship and other questionable conduct that have become the hallmarks of its litigating, policy-making, and public-relations efforts.”

The 11th Circuit acted swiftly, ordering Trump’s team on Saturday to respond to the DOJ’s motion by Tuesday at noon. Wednesday’s detailed opinion notes that Cannon’s order “does not address the special master’s authority; it addresses the district court’s orders as they require the United States to act and to refrain from acting.” But it also dissects some of her key findings such as her conclusion that Trump has an interest in some of the material because it includes “medical documents, correspondence related to taxes, and accounting information,” saying “none of those concerns apply to the roughly one-hundred classified documents at issue here.”

“And the district court made no mention in its analysis of this factor as to why or how Plaintiff might have an individual interest in or need for the classified documents,” the panel wrote, adding that it’s well-established that classified documents are accessed only if a person “among other requirements … has a need-to-know the information.”

“This requirement pertains equally to former Presidents, unless the current administration, in its discretion, chooses to waive that requirement,” the panel wrote. “Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents. Nor has he established that the current administration has waived that requirement for these documents. And even if he had, that, in and of itself, would not explain why Plaintiff has an individual interest in the classified documents.”

The panel dismissed Trump’s suggestion that he may have declassified the documents when he was president, saying there’s no evidence of that, and also called the argument a “red herring because declassifying an official document would not change its content or render it personal.”

“So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them,” the panel wrote.

The opinion also questions Cannon’s reasoning behind her reference to her “inherent supervisory authority,” saying she made  “fleetingly” and hasn’t made clear whether she “utilized this authority with respect to the orders at issue in this appeal.”

“The district court did not explain why the exercise of its inherent authority concerning the documents with classified markings would fall within these bounds, other than its reliance on its Richey-factor analysis. We have already explained why that analysis was in error,” the judge wrote, referring to a legal standard established through the 1975 5th Circuit Court of Appeals case Richey v. Smith.

The panel said Trump’s argument that Cannon’s order still allows for national-security assessments that “truly are, in fact” inextricable from criminal investigations requires discernment that “is far more easily said than done.”

“Under that theory, officials charged with overseeing both national security and criminal investigations would risk contempt of court, undoubtedly chilling their national-security duties,” according to the opinion. “Thus, an injunction delaying (or perhaps preventing) the United States’s criminal investigation from using classified materials risks imposing real and significant harm on the United States and the public.”

Read the full order below:

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A graduate of the University of Oregon, Meghann worked at The Spokesman-Review in Spokane, Washington, and the Idaho Statesman in Boise, Idaho, before moving to California in 2013 to work at the Orange County Register. She spent four years as a litigation reporter for the Los Angeles Daily Journal and one year as a California-based editor and reporter for and associated publications such as The National Law Journal and New York Law Journal before joining Law & Crime News. Meghann has written for The Washington Post, Los Angeles Times, The New York Times, Los Angeles Magazine, Bloomberg Law, ABA Journal, The Forward, Los Angeles Business Journal and the Laguna Beach Independent. Her Twitter coverage of federal court hearings in a lawsuit over homelessness in Los Angeles placed 1st in the Los Angeles Press Club's Southern California Journalism Awards for Best Use of Social Media by an Independent Journalist in 2021. An article she freelanced for Los Angeles Times Community News about a debate among federal judges regarding the safety of jury trials during COVID also placed 1st in the Orange County Press Club Awards for Best Pandemic News Story in 2021.