‘What are we doing here?’ Appeals panel appears inclined to toss out Trump special master order

Documents, some of them top secret, were seized from former president’s Mar-a-Lago home on 8 August

A three-judge panel of the 11th Circuit Court of Appeals appears poised to toss out a district judge’s order blocking the Department of Justice from using documents seized during the 8 August search of former president Donald Trump’s Palm Beach, Florida home and office.

The panel, composed of Chief Judge William Pryor, Circuit Judge Andrew Brasher, and Circuit Judge Elizabeth Cagle Grant, heard arguments from the government and from Mr Trump’s attorneys on whether it should allow a privilege review ordered by District Judge Aileen Cannon to continue or reverse the ruling, which prevented the department from using any of the thousands of non-classified documents seized during the search to further any criminal investigation while a third-party special master, New York-based District Judge Raymond Dearie, determines whether any are shielded by attorney-client or executive privilege.

Judge Cannon, a Trump appointee, issued the controversial ruling just weeks after the FBI searched Mr Trump’s Mar-a-Lago property and came away with more than 10,000 government-owned documents, including over 100 documents marked as classified at levels as high as top secret.

Justice Department attorney Sopan Joshi told the judges that Judge Cannon’s order was without precedent and an intrusion on the executive branch’s prosecutorial function that was hindering efforts to investigate and possibly prosecute crimes.

“Delay is fatal to the vindication of criminal law,” he said. He also argued that Judge Cannon’s own rulings precluded her exercise of so-called equitable jurisdiction over the case because she had found that the department had not exhibited a “callous disregard” for Mr Trump’s constitutional rights when conducting the search of his property.

But while the panel’s interactions with Mr Joshi mostly concerned the exact form of the order it might issue to overrule Judge Cannon, the three conservative jurists did not seem even slightly inclined to accept Trump lawyer James Trusty’s argument that the special master privilege review instituted by Judge Cannon was not a form of special treatment.

Mr Trusty’s interactions with the panel did not start off well for him. Within minutes of him beginning to speak, he was interrupted by Chief Judge Pryor, who asked: “Can you cite me a single decision by a federal court other than this one, where a federal court has exercised equitable jurisdiction in a pre-indictment scenario reviewing a seizure, where there's no showing that the seizure itself was unlawful or not, in the context of an immediate fully formed motion that indicates that in fact, we know this to be an unconstitutional seizure?”

The former Florida solicitor general conceded that there was no such precedent and began to argue that there was also not a precedent for a situation in which “a sitting president authorised raid of a presidential candidate’s home” — despite the fact that the sitting president, Joe Biden, played no role in authorising the search of Mar-a-Lago and that Mr Trump did not declare his candidacy until last week.

Judge Grant immediately interjected to ask Mr Trusty if the word “raid” was the proper way describe a court-authorised search, leading him to apologise for using the “loaded term”.

He was also upbraided by Judge Pryor for describing the warrant, which was authorised by a US magistrate judge who found probable cause that evidence of crimes would be found at Mar-a-Lago, as an unconstitutional “general warrant”.

At another point, Judge Pryor suggested that Mr Trusty had not satisfied requirements under the circuit court’s precedents that would have allowed Judge Cannon to use equitable jurisdiction if the government had violated Mr Trump’s rights.

Mr Trusty attempted to argue that the process established under Judge Cannon’s order was not “prejudging” whether Mr Trump could seek relief under the Federal Rules of Criminal Procedure.

But the Chief Judge did not appear satisfied.

“It seems to me that the entire premise of an exercise of this extraordinary kind of jurisdiction would be that the seizure of itself is unlawful,” he said. “And if you if you can't establish that, then what are we doing here?”

When Judge Grant — another of Mr Trump’s appointees to the 11th Circuit — asked Mr Trusty to “set aside the fact that the target of the search warrant was the former president” and asked if there were “any arguments that would be different than any defendant ... who wished to challenge [a search warrant] before an indictment,” Mr Trusty responded that he was “not looking for special treatment” for Mr Trump even though both his oral arguments and written arguments in court documents have been replete with references to his client’s status as an ex-president.

Judge Pryor replied: “I don’t know if that’s particularly responsive” and repeated his colleague’s question.

Mr Trusty responded: “It’s not special treatment. It’s just basic facts of where we are. This is a situation where a political rival has been subjected to a search warrant [where] thousands of personal materials have been taken,” he said.

Continuing, he claimed that his arguments would be no different for any other defendant, but said it was “no secret” that he and his colleagues have “concerns about the Presidential Records Act” and whether attorney-client or executive privilege issues were implicated by the search.

The George W Bush appointee responded that he did not see where Mr Trusty had made such arguments in the appellate record.

“So for our purposes, it sounds like a secret,” he said.

“Other than the fact that this involves a former president, everything else about this is indistinguishable from any pre-indictment, search warrant. And we have got to be concerned about the precedent that we would create that would allow any target of offense of a federal criminal investigation to go into into a district court and to have a district court entertain this kind of petition, exercise equitable jurisdiction and interfere with the executive branch's ongoing investigation,” he said.

Should the panel reverse Judge Cannon’s order, the Justice Department would be able to use all documents seized during the search to further its’ probe into Mr Trump, which is now being overseen by special counsel Jack Smith.