In response, James Trusty, an attorney for Trump, argued that a special master appointment didn’t significantly hamper the government’s investigation of potential mishandling of classified documents, obstruction and destruction of government property. Trusty said the Aug. 8 search of Trump’s home and private club was overly broad and agents took personal items of the former president, including golf shirts and a photo of singer Celine Dion.
But that argument didn’t seem to win over the judges, who repeatedly said Trump’s team has not proven that he needs these items returned to him and that the search was an overreach. Chief Judge William H. Pryor Jr said he was concerned about the precedent the case could create by allowing the target of a search warrant to go into a court and request a special master that could interfere with an executive branch investigation before an indictment is ever issued.
Pryor also seemed to criticize Trump’s team for asking for a special master without proving that the initial search was illegal.
“If you can’t establish that it was unlawful,” he said, “then what are we doing here?”
Pryor and Judges Andrew L. Brasher and Britt C. Grant heard the case. Grant and Brash are both Trump appointees and Pryor, the former attorney general of Alabama, was appointed by President George W. Bush.
Both Brasher and Grant were on the panel of three judges that ruled against Trump in September in a more narrow appeal of the lower court’s decision to appoint the special master.
Joshi, who argued the case for the Justice Department, is a former clerk for conservative Supreme Court Justice Antonin Scalia who now works in the solicitor general’s office — argued the case for the Jo. This is the first time the Justice Department has used a lawyer from the solicitor general’s office in the special master proceedings, a sign that the government views the appeal as an important case that could potentially reach the Supreme Court.
Chris Kise, a Trump defense attorney who has previously argued on behalf of Trump in the special master proceedings, was not present for the hearing.
The two sides have battled for months over the appointment of the special master — an outside arbiter tasked with determining if any of the 13,000 documents without classified markings taken by the FBI from Trump’s home and private club should be shielded from criminal investigators because of either attorney-client or executive privilege.
This was the first public proceeding around the Mar-A-Lago document case since Attorney General Merrick Garland appointed prosecutor Jack L. Smith on Friday to serve as special counsel of the investigation, giving him control of the day-to-day operations of the criminal probe. The Justice Department said this week that Smith had reviewed the arguments made in the appeals court.
Judge Aileen M. Cannon, a federal judge in Florida, had sided with Trump in September and appointed a special master to review the seized documents, barring the Justice Department from using any of the materials — including 103 documents marked as classified — until the outside examination concluded.
The Justice Department’s earlier appeal allowed the government to immediately resume using the classified documents in its criminal investigation, which is focused on whether classified material was mishandled and potential alleging obstruction or destruction of government property.
This latest appeal is asking the court to overturn the entire appointment of the special master, which would end the review process and give prosecutors access to the documents that are not marked as classified.
Dearie is expected to complete the review of the 13,000 documents that do not have classified markings next month. In an initial hearing, he expressed skepticism that Trump had personal or privilege-related claims to the seized material; he has not yet said whether any should be considered privileged and shielded from criminal investigators.
Any recommendation to shield or not documents would have to be approved by Cannon, unless the special master appointment is overturned.
This is a developing story. It will be updated.