Trump’s legal team is running out of options.
Despite uphill odds, Donald Trump’s request for a “special master” to review the evidence confiscated from Mar-a-Lago was granted on September 5, but a lot has changed since then. We have the latest updates on this ever-evolving story, below.
Trump’s window to appeal closes
On December 8, the clock ran out on Donald Trump’s window to appeal a court order ending his lawsuit challenging the FBI’s seizure of documents from his Florida estate. This means that the appeals court’s decision to end the “special master” process approved by Judge Aileen Cannon has been formalized, clearing the path for investigators to review thousands of documents.
“President Trump will continue to fight against weaponization of law enforcement and pursue appropriate legal avenues to obtain the items that were brazenly and illegally seized from his home during the Biden regime’s unconstitutional raid,” said Trump’s spokesperson Steven Cheung per Politico.
The Department of Justice meanwhile has asked a federal judge to hold Trump’s team in contempt over its failure to properly comply with a May subpoena ordering the return of all classified documents in his possession.
A major blow
A federal appeals court on December 1 halted the special master’s review of documents seized from Donald Trump’s Mar-a-Lago estate, removing a significant obstacle in the DOJ’s investigation.
The court ruled that U.S. District Judge Aileen Cannon had been wrong to appoint the special master, and that there hadn’t been just cause for judicial intrusion.
“The law is clear,” the appeals court wrote. “We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.”
Two out of three members of the panel were Trump appointees.
The court’s ruling will take effect in seven days, pending a successful stay to pause it while it is appealed. A source told CNN that Trump’s legal team is yet to decide whether to make the necessary appeal to the Supreme Court.
SCOTUS says no
The Supreme Court on October 13 rejected Trump’s request to include over 100 classified documents seized from Mar-a-Lago within the special master’s remit, leaving the DOJ free to access them as part of a criminal investigation.
The decision, which came with no recorded dissents, keeps the justices out of the political maelstrom at a time when the court is facing heightened public scrutiny — but it’s a massive blow to Trump.
Fresh revelations from Trump employee
According to reporting from The Washington Post published on October 12, a Trump employee has told the FBI that Trump directed boxes to be moved at Mar-a-Lago after a subpoena was served. A source also confirmed to NBC and CNN that the FBI has obtained security footage showing people moving boxes out of the room on the Florida estate.
The DOJ said in its search warrant affidavit that there were probably documents stored there “constituting evidence, contraband, fruits of crime and other items illegally possessed.”
The Trump employee had reportedly denied moving the boxes initially, but revised their story when the FBI returned to them after examining evidence.
DOJ urges the Supreme Court to stay out of it
The Department of Justice urged the Supreme Court on October 12 to reject Donald Trump’s request to include 100 classified documents seized at Mar-a-Lago within the special master’s remit. If this request were granted, Trump’s team might be able to review the files, and argue that they should be excluded from consideration in any criminal proceedings.
Primarily, the DOJ argued that the lower court’s ruling was correct.
“Indeed, the most that applicant could possibly establish about appellate jurisdiction in this case is that it presents a ‘difficult’ question,” U.S. Solicitor General Elizabeth Prelogar wrote in the filing. Prelogar stressed that Trump is wildly overstating his prerogative over the documents, including his assertions of attorney-client privilege or executive privilege. She said he has “no plausible claim.”
The DOJ re-emphasized the “extraordinary” sensitivity of the documents, and repeated the risk to national security if they were released
“As this Court has emphasized, courts should be cautious before ‘insisting upon an examination’ of records whose disclosure would jeopardize national security ‘even by the judge alone, in chambers,’” it wrote, referring to a past case.
The justices’ verdict is expected within days.
Trump appeals to the Supreme Court
As predicted, former President Trump on October 4 made an emergency request to the Supreme Court to weigh in over the documents the FBI seized from Mar-a-Lago in August. He’s asked the court to see to it that the classified documents specifically fall within the special master’s remit — a move which would boost his legal challenge of the FBI’s search of his property.
If the Supreme Court sides with Trump, it will overturn part of a unanimous ruling by the 11th U.S. Circuit Court of Appeals on September 21 that the Department of Justice could resume its review of the classified documents.
Justice Clarence Thomas has given the Department of Justice until 5 p.m. Tuesday, October 11, to respond. Until then, the lower-court ruling still stands.
A welcome get-out for Trump
Former President Trump received a welcome boost in the FBI’s investigation into classified documents at Mar-a-Lago on September 29. Judge Cannon — a Trump nominee confirmed after the 2020 election whose handling of the case so far has drawn widespread criticism — nixed elements of a plan proposed by special master Judge Dearie that would’ve required Trump to make critical statements in court.
If Dearie’d had his way, Trump would have had to make assertions as to whether he really believes the FBI planted evidence at his Florida resort — a claim he’s made publicly more than once. Judge Cannon also delayed the review by at least couple of weeks. As CNN notes, she also clarified that after the special master process is complete, any further challenges Trump chooses to bring will remain under her remit.
DOJ files fresh inventory of Mar-a-Lago findings
The DOJ has filed a revised inventory of the files it recovered from former President Trump’s Florida resort — including an affidavit supporting its accuracy. The updated list comes at the request of special master Judge Dearie after Trump claimed — without proof — that the FBI planted evidence at Mar-a-Lago.
“I am not aware of any documents or materials seized from the Premises on that date by the FBI that are not reflected in the Revised Detailed Property Inventory,” an anonymous FBI agent wrote in the new affidavit, “other than materials that the Privilege Review Team has not provided to the Case Team.”
DOJ allowed to resume its criminal probe
The Department of Justice can resume its criminal probe of the classified documents seized by the FBI from Mar-a-Lago last month, an appeals court ruled on September 21. The ruling makes a mockery of Trump’s attorneys’ unevidenced claim that the documents had been declassified, and leaves Trump with extremely limited means to stall the investigation further — though according to CNN, one option could be to make an emergency request to the Supreme Court.
The decision comes from a panel of the 11th US Circuit Court of Appeals made up of three judges, two of whom were nominated by Trump himself. One of the factors being weighed was whether Trump had any particular need for or interest in the classified documents.
“Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents,” the panel’s opinion reads.
They explained that because of the highly sensitive contents of such documents, which could have national security implications, people are only allowed access to them if they need to be aware of that information.
“This requirement pertains equally to former Presidents, unless the current administration, in its discretion, chooses to waive that requirement,” the panel wrote. According to NBC, the panel also said that Trump had also failed to demonstrate that the Biden administration had waived its need for the files.
According to CNN, the panel’s decision has partially stopped special master Judge Raymond Dearie’s review of about 100 records marked as classified — though he will be able to continue his overview of the rest of the material seized at Mar-a-Lago.
Judge Dearie casts doubt on Trump’s “declassification” claim
On September 20, Judge Raymond Dearie offered the first glimpse of how he’ll approach the controversial role of special master in the Mar-a-Lago search dispute — and he didn’t seem inclined to offer the former President special treatment. In a Brooklyn court, Judge Dearie seemed skeptical about Trump’s contention that he’d declassified the extremely sensitive documents the FBI discovered there. “You can’t have your cake and eat it,” he said.
He appeared to have very little time for Trump’s claim, given it comes in tandem with the former President’s refusal to explain why the documents shouldn’t be treated as classified.
“If the government gives me prima facia evidence that these are classified documents, and you, for whatever reason, decide not to advance any claim of declassification, I’m left with a prima facia case of classified documents, and as far as I’m concerned, that’s the end of it,” Dearie told Trump’s lawyers.
“Let’s not belittle the fact that we are dealing with at least potentially legitimately classified information. The government has a very strong obligation, as do all of us, to see to it that that information doesn’t get in the wrong hands,” he added.
Special master named
Senior Judge Raymond Dearie is tasked with determining whether any of the documents seized by the FBI at Mar-a-Lago are protected by attorney-client or executive privileges. Dearie was approved by the Justice Department, which is still barred from resuming its criminal investigation by Judge Cannon’s ruling.
Judge Dearie, 78, was nominated by President Regan, and has been serving as a federal judge covering the busy Eastern District of New York since 1986. He was one of the judges who signed off the FBI’s request to monitor Carter Page as part of the 2016 investigation into Russian interference in the presidential election, and presided over the 2015 FIFA corruption trial.
“I do not think he will be daunted by the [Trump documents] case,” Steve Gold, a law professor who previously clerked for Judge Dearie, told the BBC. “He has handled major cases and intense media interest.”
Per the BBC, Judge Dearie has demonstrated respect for government secrets in the past, and is conscientious regarding the real-world consequences of his decisions. During the trial of suspected member of al-Qaeda, he allowed British MI5 members to appear in disguise, and ordered courtroom artists not to give away their identities.
A major roadblock
On September 5, U.S. District Judge Aileen Cannon ruled that a special master — aka, a third-party attorney — will be able to review all the materials seized by the FBI from Trump’s property last month, and they could decide that some documents fall outside the scope of the FBI’s investigation. At the very least, their involvement will delay the federal inquiry, but it also adds a significant layer of uncertainty over what comes next. Investigators will now not be allowed to study the materials further, or ask witnesses about classified files that have already been examined until after the special master’s review.
In the immediate aftermath of Judge Cannon’s ruling, the Justice Department claimed that a special master “is unnecessary and would significantly harm important governmental interests, including national security interests.” Spokesman Anthony Coley said on September 5: “The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation.”
Justice Department to appeal
On September 8, the Justice Department filed a notice that it would appeal the decision. According to The New York Times, an appeal would be heard by the Court of Appeals for the 11th Circuit in Atlanta, where six of its 11 active judges were appointed by Trump.
The Justice Department stressed that the classified documents are not Trump’s personal records, stating in no uncertain terms: “Plaintiff does not and could not assert that he owns or has any
possessory interest in classified records; that he has any right to have those government
records returned to him; or that he can advance any plausible claims of attorney-client
privilege as to such records that would bar the government from reviewing or using them.”
It also asked for a partial stay of the special master ruling while the appeal is pending, arguing: “The government and the public are irreparably injured when a criminal investigation of matters involving risks to national security is enjoined.”
“The application of the injunction to classified records would thus frustrate the government’s ability to conduct an effective national security risk assessment and classification review and could preclude the government from taking necessary remedial steps in light of that review — risking irreparable harm to our national security and intelligence interests.”
Open to consideration
In a September 12 court filing, the Department of Justice indicated that it might be open to one of the candidates that Trump’s legal team has proposed for the role of special master. The department has indicated that senior Judge Raymond Dearie would be acceptable, as might retired federal judges Barbara Jones and Thomas Griffith.
This development came alongside the news that Trump’s lawyers asked a judge to keep blocking the department from examining classified documents seized at Mar-a-Lago. In a court filing, Trump’s team argued that “there still remains a disagreement as to the classification status of the documents” bearing classified markings.
Why the drama?
Special masters are typically tasked with overseeing materials covered by attorney-client privilege, but in this instance, they’ll also review documents for potential executive privilege concerns — a step the Justice Dept. said is “unprecedented.”
Experts agree that the decision was unusually sympathetic towards Trump. Stephen I. Vladeck, a law professor at University of Texas, called it “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation,” per The New York Times.
The consensus among experts is that it’s a seriously problematic overreach, unfounded in legal precedent or theory. Even former AG William Barr, who served under Trump and was considered a major ally, said it was “deeply flawed in a number of ways.”
“The opinion, I think, was wrong, and I think the government should appeal it. It’s deeply flawed in a number of ways,” Barr said during an interview with Fox News on September 6.
“I don’t think the appointment of a special master is going to hold up — but even if it does, I don’t see it fundamentally changing the trajectory. In other words, I don’t think it changes the ball game so much as maybe we’ll have a rain delay for a couple of innings.”
Paul Rosenzweig, a Department of Homeland Security official under former President George W. Bush, also condemned the decision in the strongest terms.
“I think it’s a corrupt decision. I think it is a special law just for Donald Trump by a Trump appointee, and it is unmoored from precedent, insupportable in law, will not be approved of by anybody who isn’t a Trump fanatic,” he said per NBC.
“It is supremely disappointing, because up until now … the courts have been the last bulwark against excess, and this decision suggests that at least some of Trump’s judges put loyalty to the man over loyalty to the rule of law, and that’s deeply unfortunate,” he added.
Rosenzweig was previously senior counsel to Ken Starr, who investigated President Bill Clinton.
Andrew Weissmann, a professor of practice at New York University School of Law, the former lead prosecutor in the Special Counsel’s Office, and the former general counsel of the FBI, wrote a scathing piece for The Atlantic, outlining the transparent nepotism on display:
“Her ruling is untethered to the law and presents a skewed recitation of the facts. Her actions make the question “Who appointed the judge?” a sadly relevant one in evaluating a judicial opinion,” he wrote, adding:
“Cannon’s opinion… is so deeply flawed that it’s hard to know where to begin a critique.”
Did Trump receive special treatment?
Judge Cannon, who was appointed by Trump, made repeated references to his status as a former President, saying this added to the potential for “stigma” if he was wrongfully prosecuted.
“As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own,” she wrote. “A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”
She stressed the special jeopardy Trump faces as an ex-President if sensitive information were leaked, writing:
“In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.”
CNN notes that Justice Cannon treated Trump as a special kind of defendant on the basis of his ex-President status a few times. She said that Trump’s dependence on “cooperation between former and incumbent administrations regarding” the exchange of documents was also a factor in her decision to intervene.
In response to the DOJ’s objection that special masters typically oversee searches of attorneys’ offices, Cannon wrote that she did “not see why these concerns would not apply, at least to a considerable degree, to the office and home of a former president.”
As NBC points out, Justice Cannon hypothesized arguments that even Trump’s legal defense team hadn’t made, suggesting that Trump would suffer reputational “injury” as a former president, if indicted.
Was this a clean sweep for Trump?
Not quite. Judge Cannon dismissed the claim that the FBI’s search showed “callous disregard” for his constitutional rights, and she didn’t rule that any of the documents recovered from Mar-a-Lago should be returned to him.
As NBC notes, the national security review will be allowed to continue. According to a list of property seized, Trump had more than 11,000 documents at Mar-a-Lago on August 8, the day that FBI agents executed their search warrant. At a minimum, 900 pages of government documents with classified markings were taken from the property in January, June and August this year — though the true total is almost certainly far higher.
Federal investigators in this investigation have reportedly seized or been given 60 documents marked “TOP SECRET,” 162 labeled “SECRET” and 103 classified as “CONFIDENTIAL.” Trump had also kept 48 empty folders bearing a “Classified Banner” and 42 more empty folders marked “Return to staff secretary military aide.”
