In response, James Trusty, an attorney for Trump, argued that a special master appointment didn’t significantly hamper the criminal investigation of potential mishandling of classified documents, obstruction and destruction of government property. Trusty said that during the “carte blanche” Aug. 8 search of Trump’s home and private club, agents wrongly took personal items including golf shirts and a photo of singer Celine Dion.
But that argument didn’t seem to win over the judges, who repeatedly said Trump’s team has not proven that he needs these items returned to him or that the search was an overreach. Chief Judge William H. Pryor Jr. voiced concern about the precedent the case could create by allowing the target of a search warrant to go into court and request a special master that could interfere with an executive branch investigation before an indictment is ever issued.
A judge directly asked Trusty if anyone who is the subject of a federal search should be allowed to request a special master. Trusty responded that this search is unique, saying Trump is a “political rival” of the sitting president.
Pryor also seemed to criticize Trump’s team for asking for a special master without proving that the search was illegal.
“If you can’t establish that it was unlawful,” he said, “then what are we doing here?”
The special master case originated in the Florida courtroom of U.S. Judge Aileen M. Cannon, who sided with Trump in September by appointing a special master and barring the Justice Department from using the seized materials — including 103 documents marked as classified — until the outside examination concluded. She ordered the special master to determine if any of the documents should be shielded from criminal investigators because Trump could rightfully claim certain privileges over them.
Pryor and Judges Andrew L. Brasher and Britt C. Grant heard the appeal Tuesday of Cannon’s decision. Pryor, the former attorney general of Alabama, was nominated by President George W. Bush. Brasher and Grant are Trump nominees and were on the three-judge panel that ruled against Trump earlier this fall on limited aspects of the special master appointment.
Joshi, who argued Tuesday’s case for the Justice Department, is a former clerk for Supreme Court Justice Antonin Scalia, a conservative, and now works in the solicitor general’s office. This is the first time the Justice Department has used a lawyer from the solicitor general’s office in the special master proceedings, a sign that the government views the appeal as an important case that could reach the Supreme Court.
Chris Kise, a Trump defense attorney who has previously argued on behalf of Trump in the special master proceedings, was not present for the hearing.
While the judges seemed more receptive to the Justice Department’s arguments than to Trusty’s, they also openly debated whether they had the proper jurisdiction to overturn the lower court’s entire ruling and dismiss the special master — peppering Joshi with questions about their authority in this case.
But while Trump’s lawyers had raised the jurisdictional issue in a previous filing about the special master, Trusty did not focus on the matter during his argument on Tuesday.
The judges criticized Trump’s team for seemingly making different arguments in different venues. For instance, in a recent filing to the appeals court, Trump’s team argued that, under the Presidential Records Act, the former president had the right to deem presidential records as personal ones — thus allowing him to rightfully possess former White House records at Mar-a-Lago.
Trusty did not delve deeply into that argument Tuesday, either. But he did introduce a new one, saying that 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 was for specific materials and only allowed a search of specific parts of Mar-a-Lago.
“It seems to be a new argument,” Pryor said after listening to Trusty. “This really has been shifting sands of the arguments.”
On Tuesday, Trump’s lawyers also asked Cannon to release an unredacted version of the affidavit that investigators used to convince a judge to grant a warrant. A redacted version has already been released, and Trump’s lawyers argued that seeing the full version would help them understand how investigators justified this “impermissibly broad search.”
The Justice Department’s earlier appeal of parts of the special master decision allowed the government to immediately resume using the classified documents in its criminal investigation. This latest appeal is asking the court to overturn the appointment of the special master, which would end the review process and give prosecutors access to 13,000 documents that are not marked as classified.
Raymond J. Dearie, a former chief federal judge in New York who was appointed to sort through the documents, is expected to complete the review next month. He has expressed skepticism that Trump had personal or privilege-related claims to the seized material, but has not yet said whether any should be considered privileged and shielded from criminal investigators.
Trusty said Tuesday that the two sides have been discussing which material should be shielded from investigators and still disagree on the fate of 930 documents. Any recommendation to shield or not shield documents would have to be approved by Cannon, unless the special master appointment is overturned.
Trusty objected to Justice Department claims that the special master review is slowing down the criminal investigation, noting that Attorney General Merrick Garland’s decision Friday to appoint a special counsel to oversee the probe suggests that it will not be wrapped up imminently.
Joshi disagreed and said that he expects there will be objections to Dearie’s determinations, which could result in appeals and months of delays.
“Delay is fatal to vindication of the law,” Joshi said. “And that applies in spades here.”