The US Department of Justice is scheduled to ask a court on Tuesday to quash the special master review looking into documents seized from Donald Trump’s Mar-a-Lago residence and make the materials available to the criminal investigation that surrounds the former president.
The hearing is particularly important to Trump: If he loses, it could mark the end of the special master process he has relied on to delay and learn more about the investigation into his possible mishandling of national security information.
In a 40-page brief filed ahead of an expedited afternoon hearing in the 11th Circuit Court of Appeals, the department argued that Trump should never have been able to get an independent arbitrator because the federal judge who granted the request incorrectly applied a four-point standard. parts. legal evidence to judge him.
The department also argued that the 11th Circuit should cancel the court order preventing federal investigators from examining the documents in the special master review, as Trump appeared to drop his claims that some of the materials are subject to privilege protections.
“In the absence of any likelihood of success on the merits of the claim, there is no justification for an injunction,” the department wrote in its brief, as it sought to have the appeals court reverse the district court judge’s entire decision. of the United States. UU. designee by Trump, Aileen. Cannon’s special master order.
What is at stake is the original justification of the special teacher. Cannon found Trump failed to comply with Richey’s first test, whether he suffered “callous disregard” of his constitutional rights when the FBI searched Mar-a-Lago, but agreed to Trump’s request because he felt he complied with additional tests. .
The department, echoing the 11th Circuit’s own reasoning in a previous appeal, has said that Trump’s failure to meet that standard of callous disregard alone should have resulted in the application being denied, even though the department’s legal team The former president questioned that interpretation.
But even if Cannon had correctly applied to Richey, the department argued, he erred in preventing him from accessing the materials under review.
The injunction was issued on the basis that if Trump could show that a portion of the documents were protected by executive or attorney-client privilege, then they could not be part of the cache of evidence obtained by federal investigators in the event of prosecution.
However, in the course of the special master process, the department noted, Trump’s lawyers asserted that the documents were not so privileged, but personal. If that were true, the problem for Trump is that they would have been legally seized in the FBI’s search.
Trump requested the appointment of a special master to examine the documents seized at Mar-a-Lago, including 103 with classified markings, shortly after the Aug. 8 search because, his lawyers claimed at the time, some of the materials could be subject to privilege. protections
The request was granted by Cannon, who paid exceptional deference to Trump because of his status as former president by deciding he met the four-part Richey test, and temporarily barred the department from using the seized materials in its criminal investigation.
But the department appealed part of Cannon’s order to the 11th Circuit, which sided with the government and ordered that the 103 documents marked classified be excluded from special master review and returned to investigators, criticizing Cannon for granting the review first.
That prompted Trump to unsuccessfully appeal to the supreme court, while the department appealed the special master order in its entirety, incorporating the 11th Circuit rulings and its scathing rebuke of Cannon for “abusing his discretion” in court documents. .
“This court has already granted the government’s motion to stay that unprecedented order as it relates to documents bearing classification marks,” the department wrote in an October filing. “The court should now revoke the order in its entirety for multiple independent reasons.”