A federal appeals court is hearing arguments Tuesday on whether to shut down an independent arbiter’s review of documents seized in an FBI search of former President Donald Trump’s Florida home.
The Justice Department has asked the Atlanta-based U.S. Court of Appeals for the 11th Circuit to end the review process, saying the appointment of a so-called special master has unnecessarily delayed its investigation into the presence of classified documents at Mar-a-Lago. Lawyers for Trump want the special master’s work to continue. Both sides will argue Tuesday before the appeals court.
It was not clear when the court might rule, but a victory for the Justice Department could speed its investigation along by giving prosecutors access to documents they say they need for their work.
The special master, a veteran Brooklyn judge named Raymond Dearie, was appointed in September at the Trump team’s request. He was tasked with conducting an independent inspection of the roughly 13,000 documents seized in the Aug. 8 search and filtering out from the criminal investigation any that might be covered by claims of attorney-client privilege or executive privilege.
The Florida judge who appointed him, Aileen Cannon, had blocked federal prosecutors from using the seized records as part of their investigation during the course of Dearie’s work. A three-judge panel of the appeals court later restored the Justice Department’s access to the roughly 100 documents with classification markings, but prosecutors say they still want unfettered access to the much larger trove of unclassified records and have asked the court to end the process entirely.
Though the investigation is centered on the possible mishandling of classified records, the Justice Department says it also regards the unclassified documents recovered from Mar-a-Lago as relevant to the probe. That’s because personal records were commingled together with classified documents, which prosecutors say could provide evidence of ownership or possession.
In court papers, the Justice Department has said the only purpose for which it’s been able to use the unclassified documents so far has been to engage in a “prolonged dispute” with the Trump team about their categorization.
The special master process has been playing out alongside an ongoing criminal investigation into the retention of the documents and possible obstruction.
Attorney General Merrick Garland last week named a veteran prosecutor, Jack Smith, to serve as special counsel and oversee the Mar-a-Lago investigation and key aspects of a separate probe into efforts to overturn the results of the 2020 presidential election.