In response, Trump’s attorney, James Trusty, argued that a special primary appointment did not substantially impede criminal investigations into the mishandling of classified documents, embezzlement and destruction of government property. During an Aug. 8 “carte blanche” search of Trump’s home and private club, the trustee said agents improperly took personal items, including golf shirts and a photo of singer Celine Dion.
But that argument didn’t seem to win over the judges, who repeatedly said Trump’s team didn’t prove the items should be returned to him or that the search was excessive. 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.
A judge asked the trustee directly whether anyone subject to a federal search should be allowed to request a special master. The trustee responded that the search was unique, saying Trump was a “political rival” of a sitting president.
Pryor appeared to criticize Trump’s team for asking for a special master without proving the search was illegal.
“If you can’t establish that this is illegal, what are we doing here?”
The special master case was US Judge Eileen M. Originated in Cannon’s Florida courtroom Sided with Trump In September, it appointed a special master and barred the Justice Department from using the seized materials — including 103 documents marked classified — pending an external examination. He ordered a special master to determine whether any documents should be protected from criminal investigators because Trump could legitimately claim certain privileges over them.
Pryor and Justices Andrew L. Brasher and Britt C. Grant heard Cannon’s appeal of the decision on Tuesday. Pryor, a former Alabama attorney general, was nominated by President George W. Bush. Prasher and Grant were Trump nominees and were on the three-judge panel ruled against Trump has previously fallen on limited aspects of the special primary nomination.
Joshi, who argued the case Tuesday for the Justice Department, is a former clerk to Supreme Court Justice Antonin Scalia, a conservative who now works in the solicitor general’s office. It is the first time the Justice Department has used a lawyer from the Solicitor General’s office in special master proceedings, a sign that the government considers the appeal an important case that could reach the Supreme Court.
Trump defense attorney Chris Kiss, who previously represented Trump in special master proceedings, did not appear at the hearing.
While the justices appeared to accept the Justice Department’s arguments over the trustee’s, they openly debated whether they had the proper authority to overturn the lower court’s entire decision and remove the special chair.
But while Trump’s lawyers had raised the issue of jurisdiction in an earlier filing about the special master, the trustee did not address the issue during his argument Tuesday.
Judges criticized Trump’s team for making different arguments in different places. For example, In a recent filing with the Court of AppealsThe Trump team argued that, under the Presidential Records Act, the former president had the right to treat the president’s records as private — thus allowing him to rightfully keep the former White House records at Mar-a-Lago.
The trustee did not delve into that argument on Tuesday. But he introduced a new one, saying the warrant used to search Mar-a-Lago was a “general warrant” that was more extensive. Joshi disputed that characterization and said the warrant approved by the court was for specific items and only authorized the search of specific areas of Mar-a-Lago.
“That sounds like a new argument,” Pryor said after hearing the trustee. “It really shifts the sands of the argument.”
An earlier appeal by the Justice Department allowed the government to proceed immediately with the use of classified documents in its criminal investigation. This latest appeal asks the court to overturn the special counsel’s appointment, which would have ended the review process and given prosecutors access to 13,000 documents not marked as classified.
Deary is expected to finish reviewing those documents next month. He expressed doubt that Trump had any personal or privileged claims to the seized materials, but has yet to say whether any should be privileged and protected from criminal investigators.
The trustee said on Tuesday that the fate of the 930 documents had yet to be agreed upon, and that the two sides were discussing which material should be protected from investigators. Any recommendation to preserve or not preserve documents must be approved by the canon, unless the special primary appointment is revoked.
Trustee countered the Justice Department’s claim that special master review slows down criminal investigations, citing Attorney General Merrick Garland’s decision. A special prosecutor is expected to be appointed on Friday to oversee the investigation It suggests that it will not close immediately.
Joshi disagreed and said he expected there would be objections to Deary’s decisions, which could lead to appeals and months of delay.
“Delay is dangerous to justify the law,” Joshi said. “That fits in spades here.”