Appeals panel grills Trump lawyer over FBI search of Mar-a-Lago

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ATLANTA – A three-judge panel of appeals courts expressed deep doubts Tuesday that the federal government violated former President Donald Trump’s rights when it searched Mar-a-Lago in August, questioning whether a lower court judge erred in hiring an outside expert to review the records. Seized from Florida property.

During oral arguments in the US Court of Appeals for the 11th Circuit, the government said it should never appoint a neutral arbitrator, known as a special master. Justice Department attorney Sopan Joshi told the judge that Trump failed to prove he suffered “irreparable harm” from the FBI search, which would legally require a special master. Joshi called the appointment an “intrusion” on the executive branch.

In response, Trump’s lawyer, James Trusty, argued that a special master appointment would not significantly impede a criminal investigation into the potential misuse of classified documents, obstruction and destruction of government property. During an Aug. 8 search of Trump’s home and private club, “Carte Blanche,” agents mistakenly took personal items, including golf shirts and a photo of singer Celine Dion, the trust said.

But that argument didn’t seem to win over the judge, who repeatedly said Trump’s team either had to return the items to him or didn’t prove the search was trespassing. Chief Justice William H. Pryor Jr. expressed concern about the precedent the case could create by allowing the target of the search warrant to go to court and requested a special master who could intervene in an executive branch investigation before issuing an indictment.

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The judge directly asked the trustee whether anyone who is the subject of a federal search should be allowed to request a special master. The trustee responded that the search was unique, saying that Trump is a “political rival” of the sitting president.

Pryor appeared to criticize the Trump team for asking for a special master without proving the search was illegal.

“If you can’t establish that it’s illegal,” he said, “then what are we doing here?”

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The special master case originated in the Florida court of US Judge Eileen M. Cannon Trump stood down by appointing a special master in September and barring the Justice Department from using the seized materials — including 103 documents marked classified — until an outside examination was concluded. He also ordered a special master to determine whether any documents should be protected from criminal investigators because Trump could properly claim certain privileges over them.

Pryor and Judges Andrew L. Brasher and Britt C. Grant heard Cannon’s appeal of the decision Tuesday. Pryor, a former attorney general of Alabama, was nominated by President George W. Bush. Brasher and Grant are Trump nominees and were on a three-judge panel that previously ruled against Trump on limited aspects of the special master’s appointment.

Joshi, who argued Tuesday’s case for the Justice Department, is a former clerk for Supreme Court Justice Antonin Scalia, a conservative who now works in the solicitor general’s office. It is the first time the Justice Department has used lawyers from the Solicitor General’s office in special master proceedings, a sign that the government considers the appeal an important case that could reach the Supreme Court.

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Trump defense attorney Chris Kiss, who has previously represented Trump in special master proceedings, was not present at the hearing.

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Although the judge seemed more receptive to the Justice Department’s arguments than the trustee’s, he openly debated whether he had the proper authority to overturn the lower court’s entire ruling and fire the special master — raising questions about Joshi’s authority in the case.

But Trump’s attorneys had raised the issue of jurisdiction in an earlier filing about the special master, an issue the trust did not address during Tuesday’s argument.

The judge criticized Trump’s team for appearing to make different arguments in different places. For example, in a recent petition to the appeals court, Trump’s team argued that under the Presidential Records Act, former presidents have the right to treat presidential records as personal records — thus allowing them to possess the former White House records in March. A-Lago.

The trustee did not delve into that argument Tuesday, either. But he introduced a new one, saying the warrant used to search Mar-a-Lago was a “general warrant” that was too broad. Joshi disputed that characterization and said the court-approved warrant only allowed for the search of specific items and specific parts of Mar-a-Lago.

“It seems like a new argument,” Pryor said after hearing the trustee. “It’s really shifting the sands of the argument.”

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An earlier appeal by the Justice Department allowed the government to immediately resume using classified documents in its criminal investigation. This latest appeal is asking the court to overturn the appointment of a special master, which would end the review process and give prosecutors access to 13,000 documents not identified as classified.

Derry is expected to complete a review of those documents next month. He expressed doubt that Trump has a personal or privilege-related claim to the seized material, but has yet to say whether anything should be considered privileged and protected from criminal investigators.

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The trust said on Tuesday that the two sides are discussing what material should be protected from investigators and have yet to agree on the fate of the 930 documents. Any recommendation to shield or unshield documents must be approved by Canon, unless the Special Master’s appointment is overruled.

The trust has objected to the Justice Department’s contention that the special master review is slowing down the criminal investigation, suggesting that Attorney General Merrick Garland’s decision Friday to appoint a special counsel to oversee the probe may not wrap it up any time soon.

Joshi disagreed and said he expects objections to Deary’s determinations, which could lead to appeals and months of delay.

“Delay is fatal to the upholding of law,” Joshi said. “And it applies here in spades.”

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