A panel of judges on the 11th U.S. Circuit Court of Appeals ruled Thursday to overturn the appointment of a special master tasked with reviewing thousands of documents seized by the FBI from former President Donald Trump’s Mar-a-Lago estate this summer.
The ruling by the three-judge panel, including two Trump appointees, goes into effect in seven days, absent intervention by the full circuit court or the Supreme Court.
“The law is clear,” the judges found. “We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.”
The order effectively eliminates what federal authorities had described as a major obstacle in their ongoing criminal investigation into whether Trump illegally retained highly classified records after leaving the presidency and obstructed efforts by the government to recover them. He denies wrongdoing.
The appellate judges had signaled in a hearing last week that they were likely to order an end to the special master’s review. They repeatedly expressed concern that the appointment of third-party judge Raymond Dearie by U.S. District Judge Aileen Cannon in Florida lacked any clear precedent.
The panel was skeptical of assertions from Trump’s lawyer Jim Trusty, who described the search of Trump’s home as “an extraordinary case” that warranted intervention from an outside arbiter to review all the materials seized in August.
Cannon had empowered Dearie, as special master, to evaluate the approximately 13,000 materials taken from Trump’s club, including roughly 100 documents with classification markings.
As part of his work, Dearie was supposed to analyze if any of the documents that were taken raised privilege concerns, either executive privilege or attorney-client privilege.
Thursday’s opinion makes clear the appellate judges’ belief that Cannon stepped widely outside of her jurisdiction in appointing the special master.
The judges wrote that Trump had made no argument and presented no proof that the government exercised a “callous disregard” for his rights in carrying out the search, which would be the necessary standard for such an extraordinary intervention by the courts into the executive branch’s law enforcement functions.
They dismissed as a “sideshow” Trump’s legal team’s argument that the Presidential Records Act gives him some right of personal possession over the documents, noting that even if he was correct — the items would still likely be subject to seizure under the search warrant.
“The status of a document as personal or presidential does not alter the authority of the government to seize it under a warrant supported by probable cause; search warrants authorize the seizure of personal records as a matter of course,” they wrote.
The judges also addressed whether Trump’s status as a former president would create some kind of exemption or carve-out to justify judicial intervention in the search.
“It is indeed extraordinary for a warrant to be executed at the home of a former president—but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation,” they wrote. “To create a special exception here would defy our Nation’s foundational principle that our law applies “to all, without regard to numbers, wealth, or rank.”
The Department of Justice had accused Trump’s legal team of using the special master proceedings as a “shell game” to try and delay the progress of their investigation and called Cannon’s appointment of a special master an “extraordinary judicial intrusion into a core executive branch function.”
The 11th Circuit previously granted a request from the DOJ to stay portions of a ruling by Cannon that blocked the government from using the roughly 100 documents with classification markings recovered from Mar-a-Lago in its investigation and demanded they be handed over to special master Dearie.
Trump’s attorneys then appealed that ruling to the Supreme Court, which declined to take up the matter.
Following that ruling, federal officials quickly moved for an expedited appeal to have the 11th Circuit end Dearie’s review in its entirety — arguing that the government’s inability to access the roughly 13,000 remaining non-classified documents seized from Mar-a-Lago was hampering their investigation.
Authorities will now be able to use the documents as evidence as they question witnesses and further examine the circumstances behind Trump’s decision to remove thousands of government records — including some with markings that refer to the nation’s most protected secrets — from the White House and store them at his private resort.
Earlier this month, Attorney General Merrick Garland appointed a special counsel, Jack Smith, to oversee the Mar-a-Lago investigation as well as a separate probe into efforts by Trump and his allies to overturn his 2020 election loss.
Last week, Trump’s lawyers separately asked Cannon to order the Justice Department to hand over the full, unredacted affidavit that was used to justify the search warrant on Trump’s residence. Cannon has yet to respond to their motion, but the Justice Department has expressed concern that disclosure of the details in the affidavit could jeopardize their investigation and potentially endanger cooperating witnesses.