Trump documents probe: Court lifts ban on Mar-a-Lago records

The ruling is a victory for the Justice Department, which clears the way for it to reuse the documents when considering whether to press criminal charges.

WASHINGTON — In a blatant rejection of Donald Trump’s legal arguments, a federal appeals court on Wednesday allowed the Justice Department to resume its use of classified records seized from the former President’s Florida home as part of the ongoing criminal investigation.

The ruling by a three-member panel of the US Circuit Court of Appeals for the 11th Circuit amounts to an overwhelming victory for the Justice Department and paves the way for investigators to continue examining the documents as they consider whether to file criminal charges Keeping Top Secret Records in Mar-a-Lago after Trump left the White House. By overturning a key aspect of the department’s investigation, the court removed an impediment that could have delayed the investigation by weeks.

The appeals court also specifically noted that Trump did not provide evidence that he released the sensitive documents, as he claimed Wednesday, and dismissed the possibility that Trump had an “individual interest in or need for” the approximately 100 documents could have classification marks that were seized by the FBI during his August 8 search of the Palm Beach property.

The government had argued that his investigation was hampered and national security concerns swept aside by an order from US District Judge Aileen Cannon temporarily barring investigators from continuing to use the documents in their investigations. Cannon, a Trump appointee, had said the hold would remain pending a separate review by an independent arbitrator she appointed at the request of the Trump team to review the records.

The Appellate Body agreed with the Justice Department’s concerns.

“It goes without saying that the public has a vested interest in ensuring that the preservation of classified information has not resulted in ‘extraordinarily serious harm to national security,'” they wrote. “Determining that,” they added, “necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised.”

An injunction that delayed or prevented the criminal investigation from “using classified material risks causing real and significant harm to the United States and the public,” they wrote.

Two of the three judges who issued Wednesday’s verdict — Britt Grant and Andrew Brasher — were nominated by Trump for the 11th district. Judge Robin Rosenbaum was nominated by former President Barack Obama.

Trump’s attorneys did not respond to an email asking for comment on whether they would appeal the verdict. The Justice Department had no immediate comment.

The FBI Around 11,000 documents were confiscated in the past month, including about 100 with classification markings, during a court-authorized search of the Palm Beach Club. It has launched a criminal investigation to determine whether the records were mishandled or compromised, though it’s not clear if Trump or anyone else will be charged.

Cannon ruled on September 5 that she would appoint an independent arbitrator or special master to conduct an independent review of those records and segregate any that might be covered by attorney-client privilege or board-client privilege claims and to determine whether any of the materials should be returned to Trump.

Raymond Deariethe former Chief Justice of the Federal Court of Justice, based in Brooklyn, was appointed to the role and held his first meeting with attorneys from both sides on Tuesday.

The Justice Department had argued that a special master’s examination of classified information was not required. It said Trump had no plausible basis to invoke executive privilege over the documents, nor could the records be covered by attorney-client privilege because they do not involve communications between Trump and his attorneys.

It had also challenged Cannon’s order requiring Dearie and Trump’s attorneys to have access to the classified material. The court sided with the Justice Department on Wednesday, saying: “Courts should only order the review of such materials in the most exceptional circumstances. The record does not allow the conclusion that such a circumstance is involved.”

Trump has repeatedly claimed he declassified the footage. In a Fox News Channel interview taped Wednesday before the Court of Appeals’ ruling, he said, “If you’re the President of the United States, you can declassify just by saying, ‘It’s declassified.'”

Most importantly, although his attorneys have said a president has absolute authority to release information, they have stopped claiming that the records have been released. The Trump team this week declined to provide Dearie with any information that might support the idea the recordings might have been declassified, saying the matter could be part of their defense if indicted.

The Justice Department said there was no indication Trump took any steps to release the documents, and even included a photo in a court filing of some of the seized documents with colored covers showing their classified status. The court of appeals also found this to be the case.

“The plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of those records were released,” the judges wrote. “In any case, the declassification argument is a red herring, at least for these purposes, since declassifying an official document would neither change its content nor make it personal.”

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Laura Coffey

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