In response, James Trusty, a lawyer for Trump, argued that a special senior appointment did not significantly impede the government’s investigation into the potential mishandling of classified documents, obstruction and destruction of Trump property. government. Trusty said the August 8 search of Trump’s home and private club was too broad and officers took personal items from 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 had failed to prove he needed the items returned to him and that the search was overstated. Chief Justice William H. Pryor Jr said he was concerned about the precedent the case could set by allowing the target of a search warrant to enter court and request a special master who could interfere with an executive branch investigation before an indictment is issued. .
Pryor also appeared to criticize Trump’s team for requesting a special master without proving the original search was illegal.
“If you can’t establish that it was illegal,” he said, “then what are we doing here?”
Pryor and Justices Andrew L. Brasher and Britt C. Grant heard the case. Grant and Brasher are both appointed by Trump and Pryor, the former attorney general of Alabama, was appointed by President George W. Bush.
Both Brasher and Grant were on the three-judge panel who spoke out against Trump in September in a closer appeal of the lower court’s decision to appoint the special master.
Joshi, who argued the Justice Department case, is a former clerk to conservative Supreme Court Justice Antonin Scalia and now works in the Solicitor General’s office. This is the first time the Department of Justice has brought in a lawyer from the Solicitor General’s office in a special main proceeding, a sign that the government sees the appeal as an important case that could potentially reach the Court supreme.
Chris Kise, a Trump defense attorney who has previously argued on behalf of Trump in the Master’s Special Proceeding, was not present at the hearing.
The two sides fought for months over the appointment of the special master – an outside arbiter tasked with determining whether any of the 13,000 unmarked classified documents taken by the FBI from Trump’s home and private club should be protected criminal investigators because of either attorney-client or executive privilege.
It was the first public proceeding surrounding the Mar-A-Lago Document case since Attorney General Merrick Garland on Friday appointed Attorney Jack L. Smith to serve as special counsel to the investigation, giving him the control of the daily operations of the criminal investigation. The Justice Department said this week that Smith had considered the arguments made in the appeals court.
While the judges seemed more receptive to the Justice Department’s general arguments than Trusty’s, they also openly debated whether they had the proper jurisdiction to essentially overturn the court’s entire decision. lower and dismiss the special master – crushing Joshi with questions about appeals authority. court in this case.
But while Trump’s attorneys had raised the issue of jurisdiction in a previous filing regarding the special master, Trusty did not focus on the issue during his closing argument on Tuesday.
The judges criticized Trump’s team for seemingly making different arguments in different venues. For example, in a recent appeals court filing, Trump’s team argued that under the Presidential Records Act, the former president had the right to treat presidential records as personal – thus allowing him to legitimately possess old White House files at Mars-A-Lago.
Trusty did not pursue that argument further on Tuesday. But he introduced a new one, saying the warrant used to search Mar-A-Lago was an overbroad “general warrant” and sifted through the president’s personal assets. Joshi disputed that characterization and said the court-approved warrant was for specific materials and only authorized the search of specific parts of Mar-a-Lago, such as Trump’s office and storage area.
“It seems like a new argument,” Pryor said after listening to Trusty. “It really changed the sands of the arguments.”
Florida Federal Judge Aileen M. Cannon sided with Trump in September and appointed a special master to review the seized documents, barring the Justice Department from using any of the documents – including 103 documents marked as classified – until the outside review is complete.
The Justice Department’s earlier appeal allowed the government to immediately resume the use of classified documents in its criminal investigation, which focuses on whether classified documents were mishandled and possible allegations of obstruction or destruction of government property.
This latest appeal asks the court to overturn the entire appointment of the special master, which would end the review process and give prosecutors access to documents that are not marked as classified.
Dearie is expected to complete the review of the 13,000 documents that do not have classified marks next month. At an initial hearing, he expressed skepticism that Trump had any personal or lien claims to the material seized; he has yet to say whether some should be considered privileged and immune from criminal investigators.
Any recommendation to protect documents or not should be approved by Cannon, unless the special appointment of the master is overridden.
This is a developing story. It will be updated.