Friday, November 25, 2022

Appeals panel grills Trump lawyer over FBI search of Mar-a-Lago


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ATLANTA —A panel of three appeals court judges appeared extremely skeptical Tuesday that the federal government violated former president Donald Trump’s rights when it searched Mar-a-Lago in August, questioning whether a lower court judge erred in appointing an outside expert to review documents seized from the Florida property.

During oral arguments at the U.S. Court of Appeals for the 11th Circuit, the Justice Department attempted to convince the judges that the neutral arbiter, known as a special master, should never have been appointed. Justice Department attorney Sopan Joshi told the panel Trump has failed to prove that he suffered the “irreparable harm” from the seizure that would legally necessitate a special master. He called the appointment an “intrusion” on the executive branch.

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?”

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Pryor and Judges Andrew L. Brasher and Britt C. Grant heard the case. Grant and Brasher 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 and now works in the solicitor general’s office. 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.

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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.

While the judges seemed more receptive to the Justice Department’s overall arguments than to Trusty’s, they also openly debated whether they had the proper jurisdiction to essentially overturn the lower court’s entire ruling and dismiss the special master — peppering Joshi with questions about the authority of the appeals court in this case.

But while Trump’s lawyers had raised the jurisdictional issue in a previous filing about the special master, Trusty did not focus on the matter during his argument on Tuesday.

The judges criticized Trump’s team for seemingly making different arguments in different venues. For instance, in a recent filing to the appeals court, Trump’s team argued that, under the Presidential Records Act, the former president had the right to deem presidential records as personal ones — thus allowing him to rightfully possess former White House records at Mar-A-Lago.

Trusty did not delve deeply into that argument Tuesday. But he did introduce a new one, saying that the warrant used to search Mar-A-Lago was a “general warrant” that was too broad and sifted through personal possessions of the president. Joshi disputed that characterization and said the court-approved warrant was for specific materials and only allowed a search of specific parts of Mar-a-Lago, such as Trump’s office and storage area.

“It seems to be a new argument,” Pryor said after listening to Trusty. “This really has been shifting sands of the arguments.”

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.



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