The U.S. Justice Department will ask a court on Tuesday to quash the special master review examining documents seized from Donald Trump’s Mar-a-Lago residence and make the materials available for the criminal investigation surrounding the former president.
The hearing is particularly drastic for Trump: If he loses, it could mean the end of the special master process he has relied on to delay investigations into his possible mishandling of national security information and gain more insight.
In a 40-page letter filed ahead of an expedited afternoon hearing in the 11th Circuit Court of Appeals, the department argued that Trump should never have been given an independent arbitrator because the federal judge who granted the request applied a four-part error. legal test in making its judgment.
The department also argued that the 11th Circuit should end the order preventing federal investigators from examining the documents in the special master review as Trump appeared to be dropping his claims that some of the materials are subject to privilege protection.
“In the absence of any chance of any success in the merits of the claim, there is no justification for an injunction,” the department wrote in its briefing, requesting the appeals court to overturn Trump-appointed U.S. District Court Judge Aileen. to make. Special master order from Cannon.
It is about the original rationale for the special master. Cannon determined that Trump failed the initial Richey test — whether he suffered “callous disregard” of his constitutional rights when the FBI searched Mar-a-Lago — but granted Trump’s request because she felt he was subject to additional tests passed.
The department — echoing the 11th Circuit’s own reasoning in an earlier appeal — has said that Trump’s failure to meet that harsh standard of contempt alone should have resulted in the request being denied, even though the U.S. legal team the former president contested that interpretation.
But even if Cannon applied Richey correctly, the department argued, it was wrong to prevent it from accessing the materials under review.
The warrant was issued on the basis that if Trump could prove that some of the documents were protected by executive or attorney-client privilege, they could not be part of the evidence cache obtained by federal investigators in case of prosecution.
But in the course of the special master process, the department noted, Trump’s lawyers claimed the documents weren’t so much privileged as personal. If that were true, the problem for Trump is that they would have been legally seized during the FBI search.
Shortly after the August 8 search, Trump asked for the appointment of a special master to examine the documents seized at Mar-a-Lago — including 103 with secret markings — because, his lawyers claimed at the time, some of the materials would be subject to can be privileges. protections.
The request was granted by Cannon, who paid Trump exceptional deference to his status as a former president by ruling that he passed the four-part Richey test, and temporarily banned 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 the special master review and returned to investigators, criticizing Cannon for granting the rating in the first place.
That prompted Trump to unsuccessfully appeal to the Supreme Court — while the department then appealed the entirety of the special head order, declaring the 11th Circuit rulings and Cannon’s scathing rebuke as “abuse of her discretion.” lawsuits were processed.
“This court has already granted the government’s motion to suspend that unprecedented injunction as it pertains to the classification-marked documents,” the department wrote in an October filing. “The court should now quash the order in its entirety for several independent reasons.”