The procedural battle over Trump Mar-a-Lago documents continued Tuesday as the Justice Department and the former president’s legal team faced off before a three-judge panel of the 11th Circuit Court of Appeals in Atlanta.
Government prosecutors on Tuesday urged 11th Circuit judges to end U.S. District Court Judge Aileen Cannon’s plan to let a court-appointed special supervisor go through thousands of documents found during the FBI’s unprecedented raid on Trump’s home were confiscated at Mar-a-Lago.
Cannon appointed Raymond Dearie special foreman to review files and search for documents that may be covered by attorney-client privilege.
“[Trump] has shown no need for the documents,” prosecutor Sopan Joshi said. “The plaintiff has access to all documents except the secret ones. … He has shown that he does not want the documents, but stops the government from using the documents.”
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However, Trump’s defense team returned to the argument that the Mar-a-Lago raid put the country in an unprecedented situation.
“I would start with the broader premise that there has not been a situation in our country’s history where a sitting president has authorized a raid on a former president’s home,” said Trump defense attorney Jim Trusty.
“Raid?” asked one of the judges.
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“Sorry,” Trusty said. “The execution of an arrest warrant.”
Trusty urged the panel to allow Cannon’s appointment of a special master, noting that they are currently “in a process that this judge has created.”
However, the panel was skeptical.
“We have to worry about the precedent we would set,” said one judge. “Any target could go to court and file that type of petition and get involved in the ongoing investigation by the executive branch.”
The three-judge panel for today’s hearing was randomly selected and consisted of Justice William Pryor, who was appointed by President George W. Bush, and Justices Britt Grant and Andrew Brasher, both appointed by former President Trump.
The three-person panel issued no decision from the bank.
Meanwhile, Special Master Dearie has summoned government prosecutors and Trump’s defense to a status conference in federal court in Brooklyn on December 1.
Trusty said the process is almost complete as both sides have reached a disagreement over 930 documents. The sides disagree on whether executive privilege would apply to these documents.
Tuesday’s hearing came just days after Attorney General Merrick Garland appointed former DOJ officer Jack Smith as special counsel to take over the Justice Department’s criminal investigation into the storage of presidential files at Trump’s Mar-a-Lago home.
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Smith will also oversee the DOJ’s investigation into the January 6, 2021 Capitol riots.
It’s unclear what documents Smith saw, but the Justice Department has about 100 of the documents, which the government considers classified.
FBI agents seized secret records from former President Trump’s Mar-a-Lago home during the agency’s unprecedented Aug. 8 raid, including some marked as top secret, according to a warrant and property receipt.
Trump and his legal team have said that the records kept at Mar-a-Lago were declassified while Trump was in the White House, but the Justice Department argues that Trump unlawfully kept national defense information at his home.
According to the property receipt, FBI agents removed about 20 boxes of items from the premises, including a set of documents marked “Miscellaneous Classified/TS/SCI Documents” relating to top secret/sensitive information.
Records held at this government classification level could contain human intelligence and information that, if disclosed, could endanger relations between the US and other nations and the lives of intelligence operatives abroad. However, the classification also includes national security information related to the US President’s day-to-day operations.
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The government conducted the search in response to what it believed to be a violation of federal laws: 18 USC 793 — Collection, Transmission, or Loss of Defense Information; 18 USC 2071 – Concealment, Removal, or Mutilation; and 18 USC 1519 – Destruction, Alteration or Falsification of Records in a Federal Investigation.
The charge of “collecting, transmitting or losing defense information” falls under the Espionage Act.
The former president and his team continue to dispute the classification and believe the information and records were declassified.
With Smith’s appointment as Special Counsel, it’s unclear how long Dearie will remain Special Counsel.