A federal appeals court ruling has cleared the way for the Department of Justice (DOJ) to use the remaining cache of unclassified records it seized from former President Trump’s home, halting the special master’s process and removing a key roadblock in its investigation into the potential mishandling of records at Mar-a-Lago.
The 11th Circuit Court of Appeals this week issued a strong rejection of arguments by Trump and the lower court judge who granted his request for a third-party review of the evidence seized from his home.
It also frees up the Justice Department to use 22,000 pages of seized government records — a key green light that will allow investigators to sift through any evidence in hopes of building an airtight case.
“The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so,” wrote the judges.
It is the latest sign that Trump’s initial success in the case is waning, with the court’s three-judge panel rejecting a number of arguments his legal team has made since the Aug. 9 search, ruling that even the unclassified records could be used in the department’s investigation.
The Justice Department has made clear that the classified records found at Mar-a-Lago represent the bulk of its potential case, which could include charges under the Espionage Act.
But the thousands of records found at Mar-a-Lago, which do not bear classification marks, may also be important to the case.
“One of the biggest challenges for prosecutors in this case was always establishing that Trump had personal knowledge that the classified documents were at Mar-a-Lago and that he was personally involved in not returning them, which will go to obstruction,” Brian Greer, a former CIA lawyer, told The Hill.
“The fact that these classified documents were intermingled with unclassified documents that he had access to or would have had access to is potentially very valuable evidence showing Trump’s personal knowledge,” he added.
Previous court documents indicate that Trump’s passport was found among the documents and that the search turned up government records not only in a storage room, but in Trump’s personal office.
Thursday’s ruling notes that while other personal items listed by Trump’s team, such as golf shirts and pictures of Celine Dion, may be his property, “we do not see the need for their immediate return after seizure under a presumably lawful search warrant.”
While the items are not central to building the government’s case, they may be useful in responding to potential Trump defenses.
Greer said that could be key, as the investigation differs from other cases involving the mishandling of national security information, as Trump is “a wealthy man who is not necessarily involved in packing his coffers.”
“If the classified documents were just in a storage room, in a box that was not accessed, it would be a more difficult case. But we know that some of the documents were found in Trump’s personal office instead, and if the DOJ can use the unclassified, mixed records to show that Trump had access to the classified documents, its case will be significantly stronger,” Greer said.
The Justice Department quickly responded to the 11th Circuit ruling, filing a motion in the Florida court where Trump’s challenge to the ruling was launched, asking for an extension of time for the special master, Judge Raymond Dearie, since Trump has a week to appeal the ruling before it takes effect on December 8.
While Trump’s legal team opposed the government’s motion, it did not indicate whether it plans to appeal the 11th Circuit ruling.
Experts say it will take the government some time to analyze the 22,000 pages, but warn that the Justice Department has as much an institutional interest in winning the case as an investigation.
The 11th Circuit was for the second time strongly critical of Federal District Court Judge Aileen Cannon’s decision to grant Trump’s request for a special master, noting that holding it would represent “a dramatic and unwarranted” use of the court’s authority in place.
“It set a really bad precedent, Judge Cannon’s order,” said Ankush Khardori, a former DOJ attorney specializing in major financial fraud.
“If they just had this out there, any accused or prominent accused would try to do something like Trump,” he added.
Khardori agreed that the DOJ likely viewed keeping the unclassified documents as an important step to continue its investigation, but he cautioned that it is unlikely to be the last domino to fall to indict Trump.
Following Trump’s announcement of a new presidential run in 2024, Attorney General Merrick Garland appointed Jack Smith as a special counsel to oversee the Mar-a-Lago case, as well as its investigation into efforts to block the transfer of power.
A large part of the decision on charges in the Mar-a-Lago case will likely focus on what kind of documents Trump kept.
“What is in these documents? How serious was the exposure? How significant was Trump’s retention of this material? What was in the actual documents is key to understanding the seriousness of the underlying conduct,” Khardori added.
Despite the classification markings, Khardori said it remains unknown to the public whether Trump left office with serious national security secrets.
While he said it’s unlikely, Khardori said it’s possible the documents could include classified records that are meaningless in isolation, along with other presidential records Trump can view as momentos, including letters from North Korean leader Kim Jong Un.
While the case has excited many eager to see Trump prosecuted, Khardori cautioned that the DOJ could still decline to file charges.
“If it wasn’t really terribly dangerous, then I think Jack Smith, Merrick Garland, they’re going to have to think, ‘Okay, is this the kind of case that should include the first ever prosecution of a former president?’ ‘ he said.
Greer said that if the Justice Department decided not to press charges, it would represent a double standard.
“It’s hard to see the DOJ walking away from this case. I just don’t see them saying, ‘No, we don’t think this case is worth prosecuting,’ when every year the DOJ brings multiple prosecutions like this against ordinary government employees,’ he said.
The immediate next steps for prosecutors will likely be to interview witnesses about the documents and gather every possible detail about the national security information Trump had on hand.
While Trump’s status as a presidential candidate has changed the investigation to some extent — including Smith’s appointment — Khardori said the possibility of any activity coming amid an intensifying campaign season could actually curb the DOJ’s desire to bring charges.
“They might be saying to themselves, ‘He’s running. And he may very well be in the general election. So what we have to do is put together the strongest possible case … so that if there comes a time when he’s charged , that the prosecution is as successful as possible,’ instead of, ‘Let’s put it together as quickly as possible,’ ” Khardori said.