The 11th Circuit sends the Special Master home
Apparently, the U.S. Court of Appeals hasn’t completely lost its mind (yet)
A federal appeals court on Thursday removed a major obstacle to the Justice Department’s investigation into former President Donald J. Trump’s handling of sensitive government documents by ending an outside review of the records.
In a strongly worded ruling, the three-member panel of the U.S. Court of Appeals for the 11th Circuit shut down an independent review of thousands of documents seized this summer from Mr. Trump’s private club and residence in Florida. That move allowed the government to pursue its inquiry into whether Mr. Trump illegally kept national security records at his Mar-a-Lago home and obstructed the government’s repeated efforts to retrieve them.
The unanimous but unsigned 21-page ruling was sharply critical of Judge Aileen M. Cannon’s decision in September to intervene in the case, saying she never had jurisdiction to do so.
“The law is clear,” the appeals court wrote. “We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our case law limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations.”
For more than two months, the review had hindered the criminal inquiry into Mr. Trump’s handling of more than 11,000 documents and photographs — some of them highly classified — that were hauled away from Mar-a-Lago by the F.B.I. in August.
The new Special Prosecutor will now have access to all the documents as should have happened from the beginning. And, by the way, the 3 judge panel was all Republicans, two of whom were appointed by Trump himself.
In the ruling, the appeals court went through all four factors that go into determinations over whether Judge Cannon had jurisdiction and said the circumstances of the case did not meet any of them. In particular, it noted that Judge Cannon herself agreed that the government had not shown “callous disregard” for Mr. Trump’s rights; under the law, the appeals court judges said, that factor was indispensable and so her finding should have ended the matter.
The ruling was an embarrassing development for Judge Cannon, a young jurist. She had not yet served two years on the bench when, in September, she shocked legal experts — and the government — by temporarily barring the Justice Department from using any of the seized materials in its investigation of Mr. Trump and installing an independent arbiter, known as a special master, to review them.
Judge Cannon’s appointment of the special master, Judge Raymond J. Dearie, was especially unusual because she gave him the power to sift through the documents not only for those protected by attorney-client privilege, which is fairly common, but also for those covered by executive privilege, an unprecedented move in a criminal investigation.
Shortly after Judge Cannon’s initial order came down, prosecutors asked the 11th Circuit, based in Atlanta, to reverse it and restore their ability to examine some of the most sensitive documents: a batch of about 100 that were marked as classified. The prosecutors said they needed quick and unfettered access to the classified materials to fully understand the potential hazards Mr. Trump had caused by keeping them at Mar-a-Lago.
Within a week, the appeals court ruled in favor of the government, excluding the classified files from the special master’s review and restoring investigators’ access to them. In their decision, the appellate panel — which included the same two Trump-appointed judges who issued the ruling on Thursday — indicated that Judge Cannon had committed a basic error and should not have gotten involved in the case at all.
Mr. Trump appealed this early ruling to the Supreme Court, which declined to block it in a terse order with no dissents. Not long after, the Justice Department returned to the 11th Circuit yet again and this time asked the court to shut down the special master’s review altogether.
The ruling on Thursday did precisely that, cutting short Judge Dearie’s work before he completed his review of the materials. During his brief tenure as a special master, Judge Dearie, a longtime fixture on the federal bench in Brooklyn, expressed skepticism about claims by Mr. Trump’s lawyers that the documents he was examining were in fact privileged and thus could be withheld from the Justice Department’s investigation.
That ridiculous set of delays is over. Where it goes now, we’ll have to see but it’s hard to see how they can justify just letting him get away with this.