Former President Donald Trump at an Oct. 09, 2022 rally.
Former President Donald Trump’s attorneys filed a motion on Thursday asking an appellate court to maintain a system to have a special master review the thousands of files the FBI seized from Mar-a-Lago without classification markings.
“The unprecedented nature of this investigation — an invasion into President Trump’s home by the administration of his political rival — demands not only fairness, but the perception of fairness,” Trump’s attorneys Christopher Kise and James Trusty wrote in an 82-page legal brief. “The perception of fairness is not the only reason to question the Government in protecting President Trump’s rights.”
Despite the fact that it was executed pursuant to a court-authorized warrant, Trump’s claimed their client was subjected to an “unlawful search and seizure.”
Every judge who examined the case to date has affirmed its lawfulness. Even Trump-appointed U.S. District Judge Aileen Cannon, who appointed a special master to review the case, found that “there has not been a compelling showing of callous disregard for [Trump]’s constitutional rights.”
The first words of the summary of Trump’s brief sets the tone for the remainder — an attack on the legitimacy of the Justice Department’s investigation.
“This investigation of President Trump by the administration of his political rival is both unprecedented and misguided,” the brief states. “In what at its core is a document dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records.”
The conservative 11th Circuit Court of Appeals, which is considering the fate of the special master, has shown deep skepticism about Trump’s arguments.
In September, the court’s three-judge panel blocked two key facets of a lower court judge’s order appointing a special master to review the files seized from Mar-a-Lago: the inspection of the classified files and the injunction preventing the Department of Justice from using them in their ongoing criminal investigation. Trump appointed two of the judges behind that ruling.
The Justice Department initially only sought relief as to the more than 100 documents with marked up to top secret and above, a small portion of the more than 11,000 other files.
Now, the Justice Department seeks broader relief that would overturn Judge Cannon’s order in its entirety, including for the apparently unclassified files. Such an order would end the work of Senior U.S. District Judge Raymond Dearie.
Trump’s attorneys argued that Dearie should be able to finish that work.
“The Injunction is not sought to stop the Department of Justice’s investigation,” their legal brief states. “Rather, it implements a short pause until a neutral special master — and the District Court, if needed — reviews the seized materials to ensure the prosecution team does not receive President Trump’s privileged records or unlawfully retain his personal records. Maintaining the status quo, where the government cannot use certain records in its investigation, provides little, if any, harm. To be sure, it is within the executive branch’s purview to expeditiously investigate and prosecute criminal activity, but that obligation cannot outweigh President Trump’s right to a fair process where his privileged documents and communications remain privileged.”
Former federal prosecutor Mitchell Epner, now a partner at Rottenberg Lipman Rich PC, noted that many of Trump’s arguments were considered, and rejected, by the 11th Circuit earlier.
“That opinion addressed all of the issues presented here and ruled against FPOTUS on every factor,” Epner wrote, using the court’s acronym for the former president. “Outside of distinguishing the 11th Circuit’s earlier holding that the lack of outrageous conduct by the government doomed FPOTUS’s position, they address none of it.”
“In fact, many of the DOJ’s positions that FPOTUS disparages as ridiculous were adopted by the 11th Circuit in its prior ruling,” he continued.
The Justice Department’s reply is now due on Nov. 17.
Read Trump’s legal brief here.
[Image via Mario-Tama at Getty Images]
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