Appeals court vacates Mar-a-Lago special master order

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A member of the Secret Service is seen in front of the home of former President Donald Trump at Mar-A-Lago in Palm Beach, Florida on August 9, 2022.

Giorgio Viera | AFP | Getty Images

A federal appeals court on Thursday overturned a judge’s decision to appoint a watchdog known as a special master to review thousands of documents seized by the FBI from the Florida residence of former President Donald Trump as part of a criminal investigation.

“This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation,” a three-judge panel on the US Court of Appeals for the 11th Circuit wrote in its ruling.

“The answer is no,” the panel wrote.

All three judges on the panel were put there by Republican presidents. Trump appointed Britt Grant and Andrew Brasher, while Chief Justice Bill Pryor was appointed by George W. Bush.

Their ruling could accelerate the pace of the Department of Justice’s investigation of Trump for his removal of documents from the White House and their shipment to his Mar-a-Lago club in Palm Beach, Florida. By law, those documents — more than 100 of which were marked confidential, secret or top secret — belong to the federal government.

On Nov. 18, Attorney General Merrick Garland appointed Jack Smith as special counsel for that probe, which is also focused on whether Trump and others obstructed justice in the months that the federal government was trying to recover the records before the raid.

The DOJ had appealed the appointment of the special master, which was done at Trump’s request, in September by Judge Aileen Cannon in the US District Court for the Southern District of Florida. Cannon was nominated to the bench by Trump.

Cannon had authorized the special master, Senior US District Judge Raymond Dearie of federal court in Brooklyn, New York, to review the seized property from Mar-a-Lago for “personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege.”

Cannon also temporarily blocked the DOJ from reviewing or using the seized documents for its investigation while Dearie’s examination of them was pending.

The DOJ said that order was not justified under the law.

The Aug. 8 The raid at Mar-a-Lago was conducted after another judge signed a search warrant, finding that there was probable cause that FBI agents would find evidence of a crime at the property.

In its 21-page ruling Thursday, the 11th Circuit panel said Cannon was wrong to allow an outside party to delay the DOJ’s probe.

“The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant,” the panel wrote.

“Nor can we write a rule that allows only former presidents to do so,” the panel wrote.

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“Either approach would be a radical reordering of our case law limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.”

The ruling said there was only one possible justification for Cannon to have appointed the special master under a concept known as equitable jurisdiction.

That justification would be the fact that Trump “is a former President of the United States,” the appeals panel noted.

However, the panel immediately added, “It is indeed extraordinary for a warrant to be executed at the home of a former president—but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation.”

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