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WASHINGTON (AP) — In a stark repudiation of Donald Trump’s legal arguments, a federal appeals court on Wednesday permitted the Justice Department to resume its use of classified records seized from the former president’s Florida estate as part of its ongoing criminal investigation.
The ruling
from a three-judge panel of the U.S. Court of Appeals for the 11th Circuit
amounts to an overwhelming victory for the Justice Department, clearing the way
for investigators to continue scrutinizing the documents as they consider
whether to bring criminal charges over the storage of top-secret records at
Mar-a-Lago after Trump left the White House. In lifting a hold on a core aspect
of the department’s probe, the court removed an obstacle that could have delayed
the investigation by weeks.
The appeals
court also pointedly noted that Trump had presented no evidence that he had
declassified the sensitive records, as he maintained as recently as Wednesday,
and rejected the possibility that Trump could have an “individual interest in
or need for” the roughly 100 documents with classification markings that were
seized by the FBI in its Aug. 8 search of the Palm Beach property.
“If you’re the president of the United States,
you can declassify just by saying ‘It’s declassified.’ Even by thinking about
it...You’re the president, you make that decision,” Trump claimed in a Fox News
Channel interview recorded Wednesday before the appeals court ruling.
The
government had argued that its investigation had been impeded, and national
security concerns swept aside, by an order from U.S. District Judge Aileen
Cannon that temporarily barred investigators from continuing to use the
documents in its inquiry. Cannon, a Trump appointee, had said the hold would
remain in place pending a separate review by an independent arbiter she had
appointed at the Trump team’s request to review the records.
The appeals
panel agreed with the Justice Department’s concerns.
“It is
self-evident that the public has a strong interest in ensuring that the storage
of the classified records did not result in ‘exceptionally grave damage to the
national security,’” they wrote. “Ascertaining that,” they added, “necessarily
involves reviewing the documents, determining who had access to them and when,
and deciding which (if any) sources or methods are compromised.”
An
injunction that delayed or prevented the criminal investigation “from using
classified materials risks imposing real and significant harm on the United
States and the public,” they wrote.
Two of the
three judges who issued Wednesday’s ruling — Britt Grant and Andrew Brasher —
were nominated to the 11th Circuit by Trump. Judge Robin Rosenbaum was
nominated by former President Barack Obama.
Lawyers for
Trump did not return an email seeking comment on whether they would appeal the
ruling. The Justice Department did not have an immediate comment.
The FBI last
month seized roughly 11,000 documents, including about 100 with classification
markings, during a court-authorized search of the Palm Beach club. It has
launched a criminal investigation into whether the records were mishandled or
compromised, though is not clear whether Trump or anyone else will be charged.
Cannon ruled
on Sept. 5 that she would name an independent arbiter, or special master, to do
an independent review of those records and segregate any that may be covered by
claims of attorney-client privilege or executive privilege and to determine
whether any of the materials should be returned to Trump.
Raymond
Dearie, the former chief judge of the federal court based in Brooklyn, has been
named to the role and held his first meeting on Tuesday with lawyers for both
sides.
The appeals
court ruling substantially narrowed the special master’s job duties, enabling
the Justice Department to avoid providing him with classified documents to
review. Responding to the order, Cannon on Thursday struck the parts of her
order that required the department to give Dearie and Trump’s lawyers access to
the classified documents. Instead, Dearie would review the much larger tranche
of non-classified government documents.
The Justice
Department had argued that a special master review of the classified documents
was not necessary. It said Trump had no plausible basis to invoke executive
privilege over the documents, nor could the records be covered by
attorney-client privilege because they do not involve communications between
Trump and his lawyers.
It had also
contested Cannon’s order requiring it to provide Dearie and Trump’s lawyers
with access to the classified material. The court sided with the Justice
Department on Wednesday, saying “courts should order review of such materials
in only the most extraordinary circumstances. The record does not allow for the
conclusion that this is such a circumstance.”
Though
Trump’s lawyers have said a president has absolute authority to declassify
information, they have notably stopped short of asserting that the records were
declassified. The Trump team this week resisted providing Dearie with any
information to support the idea that the records might have been declassified,
saying the issue could be part of their defense in the event of an indictment.
The Justice
Department has said there is no indication that Trump took any steps to
declassify the documents and even included a photo in one court filing of some
of the seized documents with colored cover sheets indicating their classified
status. The appeals court, too, made the same point.
“Plaintiff
suggests that he may have declassified these documents when he was President.
But the record contains no evidence that any of these records were
declassified,” the judges wrote. “In any event, at least for these purposes,
the declassification argument is a red herring because declassifying an
official document would not change its content or render it personal.”