Justice Department asks appeals court to toss Trump special master order

‘Most fundamentally, the district court erred in exercising equitable jurisdiction to entertain [Mr Trump’s] action in the first place’

The Department of Justice has asked the 11th Circuit Court of Appeals to overturn a Trump-appointed judge’s order barring the use of non-classified documents seized during a search of Mr Trump’s home in an ongoing criminal probe into the ex-president.

In a legal brief filed with the court late on Friday, prosecutors called Judge Aileen Cannon’s decision to name a special master to review documents seized in the 8 August search of the ex-president’s Mar-a-Lago property as “an unprecedented order by the district court restricting an ongoing criminal investigation by prohibiting the Executive Branch from reviewing and using evidence ... recovered in a court-authorized search”.

The court previously blocked Judge Cannon’s order from enjoining the government with respect to 103 classified documents found during the search, but this latest brief represents the government’s effort to completely reverse the controversial ruling.

Prosecutors argued that Judge Cannon exceeded her jurisdiction in blocking use of the documents because US district courts lack “general equitable authority to superintend federal criminal investigations”.

Instead, they said Mr Trump should have followed normal protocols by challenging the search if and when criminal charges are filed against him.

“Most fundamentally, the district court erred in exercising equitable jurisdiction to entertain [Mr Trump’s] action in the first place. The exercise of equitable jurisdiction over an ongoing criminal investigation is reserved for exceptional services, and [the ex-president] failed to meet this Court’s established standards for exercising that jurisdiction here,” prosecutors wrote.

They added that under the 11th Circuit’s precedents, Judge Cannon would only have been justified in intervening had the government violated Mr Trump’s rights, but the district judge specifically found that the government had done no such thing when executing the search warrant at his home.

“Under this Court’s precedent, it requires, at a minimum, a showing that the government callously disregarded Plaintiff’s constitutional rights. Nothing like this was shown in this case, as the district court acknowledged,” they wrote.

Continuing, the Justice Department also argued that Judge Cannon erred in ordering a special master review because Mr Trump “has no basis to assert executive privilege to preclude review of Executive Branch documents”.

It’s possible that the appeals court will hear arguments in the case within a very short time. A 5 October order granting the government’s request to expedite the case states that it will be assigned to a “special merits panel” of three circuit judges, and that panel “will decide when and how to hear oral argument”.