Federal appeals court prepares to hear arguments in Mar-a-Lago documents dispute

Washington — A federal appeals court in Atlanta is poised to hear arguments Tuesday in the dispute between the Justice Department and former President Donald Trump over the former president’s handling of sensitive records he brought to his South Florida residence from the White House at the end of his presidency.

At the center of the court battle before the U.S. Court of Appeals for the 11th Circuit is a federal district judge’s decision to grant Trump’s request for an independent arbiter, known as the special master, to review the roughly 13,000 documents seized in the FBI’s search at Mar-a-Lago, Trump’s Palm Beach resort, for material that may be subject to claims of executive or attorney-client privilege. 

Federal prosecutors told the court in a brief that roughly 300 documents with classification markings have been recovered from Mar-a-Lago since January, when the National Archives and Records Administration first retrieved 15 boxes of documents from the property. Of those 300 documents, 103 records, “some indicating the highest levels of classification and extremely limited distribution,” prosecutors said, were taken by the FBI during its Aug. 8 search. 

Federal prosecutors have asked the 11th Circuit to end the review by the special master and lift an injunction from the judge, Aileen Cannon, that barred the government from using the seized documents for investigative purposes.

A panel of three judges will hear arguments in the dispute beginning at 2 p.m. ET. The judges assigned to the case are Chief Judge William Pryor, Judge Britt Grant and Judge Andrew Brasher, according to the clerk’s office. Both Grant and Brasher were appointed to the 11th Circuit by Trump, while Pryor was named to the court by former President George W. Bush.

During an earlier stage in the proceedings, Grant and Brasher were part of a three-judge panel that unanimously ruled against Trump and allowed the Justice Department to regain access to a batch of 103 documents marked classified that were initially kept from investigators.

Before oral arguments were scheduled to begin, Trump’s lawyers asked Cannon to order the Justice Department to provide him with an unredacted version of the affidavit laying out the government’s justification for the search warrant at Mar-a-Lago. In its motion filed with the federal district court in Florida, Trump’s legal team noted the various ongoing investigations from federal and state officials involving the former president and claimed “the search smacks of pretextual conduct with hopes of feeding personal documents to prosecutors or agents who might find use for them in unrelated pursuits.”

Despite prosecutors taking the unusual step of urging the court to make much of the warrant record public in redacted form, Trump’s legal team said it need access to the unredacted affidavit to “vindicate” his constitutional rights. U.S. Magistrate Judge Bruce Reinhart, who approved the search warrant, made public a redacted version of the affidavit in late August.

In filings with the 11th Circuit, federal prosecutors have argued the district court lacked jurisdiction to consider Trump’s request for a special master and was wrong when it decided to intervene in the investigation. The ongoing probe into Trump’s handling of the records, as well as possible obstruction related to that investigation, warrants their unfettered access to the seized evidence, the Justice Department lawyers said. 

Prosecutors also told the 11th Circuit that Trump’s claims of attorney-client and executive privilege — many of which have shifted over time throughout the proceedings — are unfounded.

Trump’s legal team has repeatedly criticized the Justice Department’s investigation as “unprecedented and misguided,” and characterized the ongoing legal fight as a “document dispute that has spiraled out of control.”

In their own brief to the 11th Circuit, Trump’s attorneys argued Cannon’s order appointing a special master is not appealable, and that Trump deemed the records he brought to Mar-a-Lago as “personal” while he was still in office, a designation allowed under the Presidential Records Act. Under that law, a president’s personal records are purely private or nonpublic and are unrelated to the ceremonial or official duties of the presidency.

“It is simply untenable to conclude any president may be subject to a criminal charge for exercising the unfettered rights set forth in the PRA to categorize certain documents as ‘personal’ during that president’s term of office,” they wrote.

Claims of attorney-client privilege have mostly been resolved by the two parties, but Trump has argued some of the seized records belong to him in a personal capacity as the former president. His legal team has argued the documents he brought to Mar-a-Lago must be considered “presumptively privileged” by the courts and shielded from the criminal investigation until the independent review concludes. 

But prosecutors have remained opposed to Trump’s reading of the law, writing in part that he cannot assert executive privilege to preclude review of executive branch documents by the executive branch itself. Even if the documents were personal in nature, the Justice Department contends, they would still be subject to a court-authorized search warrant like the one executed at Mar-a-Lago. 

When issuing her original ruling appointing the special master, Cannon wrote that Trump faced an “unequitable potential harm by way of improper disclosure of sensitive information to the public,” but criminal investigators rarely — if ever — release seized evidence to the public unless criminal charges are filed. 

After granting Trump’s request for a special master, Cannon appointed New York federal Judge Raymond Dearie, a well-known semi-retired jurist, to conduct the review. He is expected to complete his work in December.

The arguments before the 11th Circuit are taking place days after Attorney General Merrick Garland appointed a special counsel to oversee two Justice Department investigations involving Trump: the probe into his handling of sensitive government records at Mar-a-Lago, as well as alleged efforts to obstruct that investigation, and alleged efforts to unlawfully interfere with the transfer of power after the 2020 presidential election or the counting of Electoral College votes on Jan. 6, 2021. 

The Justice Department notified the 11th Circuit in a filing Monday that John “Jack” Smith had been named special counsel, and his name would appear on future filings in the matter. Additionally, Smith “has reviewed the filings in this litigation and approves of all of the arguments that have been presented in the briefs and will be discussed at the oral argument,” Juan Antonio Gonzalez, the U.S. attorney in Miami, told the court.

Trump first asked the court to appoint a special master to review the seized documents in late August, two weeks after the FBI conducted the search of his office and storage room at Mar-a-Lago. Stemming from the proceedings was a separate dispute over investigators’ access to 103 documents marked classified, which Cannon’s original order kept off-limits to the Justice Department.

But federal prosecutors requested government investigators be allowed to regain access to the batch of records, which the 11th Circuit allowed. Trump then asked the Supreme Court to intervene and let the special master have access to the 103 documents with classification markings, but his request was turned down.