Judges at an Atlanta-based federal appeals court on Tuesday signaled sympathy for the US Department of Justice’s attempt to reverse the appointment of an independent arbitrator to review documents seized by the FBI from Donald Trump’s Florida home when they told the former president’s attorney asked difficult questions.
A three-judge panel of the 11th US Circuit Court of Appeals heard arguments in the department’s challenge to a judge’s appointment of a “special master” in September to review documents and consider barring some from an ongoing criminal investigation should. The department also seeks prompt access to all confiscated documents.
It was one of a series of legal issues Trump faced on Tuesday, a week after he launched a new candidacy for the White House, including the US Supreme Court paving the way for a Democratic-led congressional committee to seek access to get his tax returns.
Trump attorney James Trusty told Atlanta judges that Trump’s status as a former president contested the documents on an unusual case that required special review by the master.
But Chief Justice of the 11th Circuit, William Pryor, has repeatedly questioned whether allowing a court now to intervene in criminal investigations before an indictment has been brought would set a bad precedent that would harm other investigations.
Pryor also questioned whether Trump’s attorneys had produced evidence of unlawful activity related to the document seizure.
“If you can’t tell, what are we doing here?” Pryor asked.
Trusty acknowledged that the search of Trump’s property was handled no differently than a typical criminal investigation, except that Trump is a former president.
Justice Department attorney Sopan Joshi told the court that the ministry could not find another case where a judge exercised jurisdiction and effectively paused an ongoing criminal investigation in the absence of evidence of an illegal government search.
FBI agents seized about 11,000 records, including about 100 marked classified, during court-authorized searches of Trump’s Mar-a-Lago Palm Beach home as part of a criminal investigation into his possession of government documents following his departure from office last year . US Attorney General Merrick Garland last Friday appointed a special counsel, Jack Smith, to take over these investigations three days after Trump’s 2024 presidential candidacy was announced.
U.S. District Judge Aileen Cannon appointed Raymond Dearie, who is also a federal judge, as special master. Dearie’s review process is about whether any of the documents are protected by a legal doctrine called executive privilege, which allows presidents to withhold certain forms of confidential communications, and whether they qualify as “personal” records that should also be kept by investigators.
In another development, Republican U.S. Senator Lindsey Graham testified Tuesday before a special grand jury in Georgia investigating whether Trump and his allies attempted to overturn the results of the state’s 2020 presidential election. President Joe Biden defeated Trump in Georgia.
“Senator Graham appeared before the Fulton County Special Grand Jury for just over two hours and answered all questions,” the senator’s office said in a statement.
Also on Tuesday, Trump’s attorneys asked Cannon to unseal the full version of the affidavit the FBI used to obtain an arrest warrant before conducting the search. A redacted version of the affidavit was released in August after media organizations requested her release, redacting sections that prosecutors said should remain classified.
The Justice Department said the redactions included information from “a wide range of civilian witnesses” as well as investigative techniques that, if disclosed, could reveal how investigations could be obstructed.
Trump’s attorneys told Cannon that he needed to be able to review the full affidavit to determine whether the department had violated the US Constitution’s Fourth Amendment prohibition on unreasonable searches and seizures.
Regarding the documents, the department said Trump did not provide evidence that the documents seized were “personal” and that, as a former president, he could not invoke executive privileges to protect records of the current executive branch.
Cannon, who was appointed by Trump to her judgeship, also prevented investigators from reviewing any documents seized until Dearie had completed his work. Federal prosecutors have argued that Cannon’s verdicts are hampering the investigation.
The 11th Circuit Court has previously ruled in favor of the Justice Department in its investigation, ruling in September that prosecutors can have access to documents marked as classified. Judges Britt Grant and Andrew Basher, both appointed by Trump, were involved in that ruling and were part of Tuesday’s three-judge panel.