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11th Circuit Sounds Death Knell for Donald Trump’s Mar-a-Lago Suit, as Feds Reportedly Move to Hold Ex-President’s Office in Contempt

Trump and Mar-a-Lago Documents are seen in photos.

Former U.S. President Donald Trump was seen golfing on Sept. 13, 2022. Federal prosecutors filed a photo of documents recovered from Mar-a-Lago in early August 2022. (Photo of Trump by Win McNamee/Getty Images; photo of Mar-a-Lago documents via a federal court filing.)

Around the same time that the 11th Circuit officially terminated Donald Trump’s Mar-a-Lago lawsuit, the Department of Justice reportedly moved to hold the former president in contempt in that investigation.

The two events, reported in rapid succession late on Thursday, marks a dramatic escalation by newly unfettered federal prosecutors in an investigation over the handling of hundreds of documents marked classified. Trump’s legal team did not appeal the 11th Circuit’s ruling savaging the ex-president’s lawsuit challenging the seizure of those records and thousands of others. Their Dec. 1 ruling ended the special master review, declining to “carve out an unprecedented exception in our law for former presidents.”

Given a Thursday deadline to try to stay the ruling, Trump’s legal team waited until it was too late. The 11th Circuit issued a mandate formally ending that case.

“It is hereby ordered, adjudged, and decreed that the opinion issued on this date in this appeal is entered as the judgment of the court,” the mandated stated with finality.

That line formally ends the service of two federal judges assigned to the Mar-a-Lago matter: U.S. District Judge Aileen Cannon, who issued orders preventing the FBI from using files in their criminal investigation, and Senior U.S. District Judge Raymond Dearie, whom Cannon selected as a special master to conduct a privilege review of those documents.

Finding that Cannon overstepped her power, the 11th Circuit overturned her orders and ordered her to close the case.

Now, multiple news outlets are reporting that the Justice Department has sought to hold Trump in contempt for failing to comply with a subpoena from this past May ordering him to return all classified documents. The Washington Post first reported the development, attributing the request to sources familiar with the matter. CNN later matched the report. There is no public filing about the Justice Department’s request, as grand jury matters are traditionally secret, and the filing is under seal. They reportedly made the request to Chief U.S. District Judge Beryl Howell, who heads the federal court in Washington, D.C.

According to the Post, the most likely penalty against Trump if Judge Howell were to rule against him would be a fine, whose size would be up the discretion of the judge. Earlier this year, a Manhattan judge found Trump in contempt of court for non-compliance with a subpoena in an unrelated matter: New York Attorney General Letitia James’s (D) civil investigation into alleged fraud. That judge, Arthur Engoron, imposed a fine, until Trump’s lawyers left him satisfied that they performed a diligent search for responsive documents.

Neither the Post nor CNN report explicitly state that the request was made by special counsel Jack Smith, who is now in charge of the Mar-a-Lago investigation.

According to the search warrant materials made public earlier this year, federal authorities have been investigating Trump for suspected violations of the Espionage Act, obstruction of justice, and concealment and removal of government records.

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."