Justice Files Special Master Appeal, Girds for Briefing Battle
The Justice Department will appeal the decision to appoint a special master, putting it on a collision course with the Supreme Court.
All eyes will now turn to the riders of the Eleventh Circuit of the United States Court of Appeals after the justice department gave notice that it will appeal a federal judge’s decision to appoint a special master to review the more than 10,000 documents seized during the search at Mar-a-Lago.
In its notice of appeal Thursday, the DOJ claimed that President Trump “does not and could not assert that he owns or has any possessory interest in classified records; that he has any right to have those government records returned to him; or that he can advance any plausible claims of attorney-client privilege.”
Judge Aileen Cannon’s decision to appoint the independent arbiter was widely seen as a rebuke to the DOJ’s insistence that its own internal “filter team” could review the trove of documents and set aside those that could not be used in its investigation.
Notably, Judge Cannon allowed for the special master to also consider executive privilege, reasoning that she was not convinced by the DOJ’s insistence that the law was “clear cut” that one president’s privilege ended the moment the next took the oath of office.
For the judge, the order to appoint a special master emerged from “the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented.” Her order also enjoined the government “from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review.”
Attorney General Garland’s lawyers have asked Judge Cannon to lift her stay on the investigation, arguing that they are likely to succeed at the appellate level where they did not before her bench. They insist that a special master would “cause the most immediate and serious harms to the government and the public” and that classified material has already been moved to a secure location.
The nature of that material has been the subject of frenzied speculation, with the Washington Post reporting this week that a document “describing a foreign government’s military defenses, including its nuclear capabilities,” was found at Mar-a-Lago, along with those detailing “top-secret U.S. operations so closely guarded that many senior national security officials are kept in the dark about them.”
The decision to appeal was widely seen as a fraught one for the DOJ. The process, which will involve extensive briefing, could take longer than the work of a special master. Additionally, should the government prevail, Mr. Trump is likely to appeal to a Supreme Court that he helped shape and that has taken a decisively conservative turn.