In response, James Trusty, a lawyer for Trump, argued that a special master appointment did not significantly impede the criminal investigation into potential mishandling of classified documents, obstruction and destruction of public property. Trusty said that during the Aug. 8 “carte blanche” search of Trump’s home and private club, agents mistakenly took personal items, including golf shirts and a picture of singer Celine Dion.
But that argument did not appear to win over the justices, who repeatedly said Trump’s team has not proven he needs those items returned to him or that the search was an excessive effort. Chief Justice William H. Pryor Jr. expressed concern about the precedent the case could set by allowing the target of a search warrant to go to court and request a special master who could interfere in an executive branch investigation before an indictment is ever issued.
A judge asked Trusty directly whether someone subject to a federal search warrant should be allowed to request a special master. Trusty responded that this search is unique, saying that Trump is a “political rival” to the sitting president.
Pryor also appeared to criticize Trump’s team for asking for a special warrant without proving the search was illegal.
“If you can’t establish that it was illegal,” he said, “what are we doing here?”
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The particular case originated in the Florida courtroom of US 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 classified — until the outside investigation is complete. She ordered the special master to determine whether 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 of Cannon’s decision on Tuesday. Pryor, the former Alabama attorney general, was appointed by President George W. Bush. Brasher and Grant are Trump appointees and were on the three-judge panel that ruled against Trump earlier this fall against limited aspects of the special master appointment.
Joshi, who argued Tuesday’s case for the Justice Department, is a former clerk for conservative Supreme Court Justice Antonin Scalia and now works in the attorney general’s office. It is the first time the Justice Department has used a lawyer from the attorney general’s office in the special case, a sign that the government sees the appeal as an important case that could potentially reach the Supreme Court.
Chris Kise, a Trump defense attorney who previously argued for Trump in the special case, was not present at the hearing.
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While the justices seemed more receptive to the Justice Department’s arguments than to the Trustees’, they also openly debated whether they had the proper jurisdiction to overturn the lower court’s entire decision and dismiss the special master — peppering Joshi with questions about their authority in the matter.
But while Trump’s lawyers had raised the jurisdictional issue in an earlier filing for the special master, Trusty did not focus on the issue during his argument Tuesday.
The judges criticized Trump’s team for apparently making different arguments in different venues. For example, Trump’s team argued in a recent appeals court filing that the former president was entitled under the Presidential Records Act to treat presidential records as personal — thus allowing him to legally possess former White House records at Mar-A-Lago .
Trusty didn’t delve deeply 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, saying the court-approved warrant was for specific materials and only allowed a search of certain parts of Mar-a-Lago.
“That seems to be a new argument,” Pryor said after listening to Trusty. “This has really shifted the truth of the arguments.”
The Justice Department’s earlier appeal allowed the government to immediately resume using the classified documents in its criminal investigation. This latest appeal asks the court to overturn the appointment of the special master, which would end the review process and give prosecutors access to 13,000 documents not marked as classified.
Dearie is expected to finish reviewing those documents next month. He has expressed skepticism that Trump had personal or privilege-related claims to the seized material, but has yet to say whether any should be considered privileged and protected from criminal investigators.
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Trusty said Tuesday that the two sides have discussed which material should be protected from investigators and remain at odds over the fate of 930 documents. Any recommendation to shield or not shield documents must be approved by Cannon unless the special master appointment is overturned.
Trusty objected to claims by the Justice Department that the special master review is slowing the criminal investigation, noting that Attorney General Merrick Garland’s decision Friday to appoint a special counsel to oversee the investigation suggests it will not be completed immediately.
Joshi disagreed, saying he expects there will be objections to Dearie’s decisions, 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.