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Appeals court: Justice Dept. can use Mar-a-Lago documents in criminal probe

Federal appeals panel says Judge Aileen Cannon ‘abused’ her discretion in requiring outside review of seized classified documents

An image provided by the Department of Justice shows partially redacted documents with classified markings, including colored cover sheets indicating their status, that FBI agents reported finding at Trump's office in Mar-a-Lago. (Courtesy of Department of Justice)
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An appeals court sided with the Justice Department in a legal fight over classified documents seized in a court-authorized search of former president Donald Trump’s Mar-a-Lago home, ruling Wednesday that the FBI may use the documents in its ongoing criminal investigation.

The decision by a three-judge panel of the appeals court marks a victory, at least temporarily, for the Justice Department in its legal battle with Trump over access to the evidence in a high-stakes investigation to determine if the former president or his advisers mishandled national security secrets, or hid or destroyed government records.

It was the second legal setback of the day for Trump, who was sued Wednesday morning by New York Attorney General Letitia James. The lawsuit said Trump and his company flagrantly manipulated property and other asset valuations to deceive lenders, insurance brokers and tax authorities to get better rates and lower tax liability.

On Sept. 21, New York Attorney General Letitia James accused former president Donald Trump of fraudulent asset valuations to obtain economic benefits. (Video: The Washington Post)

In Wednesday night’s ruling, the U.S. Court of Appeals for the 11th Circuit in Atlanta found fault with Trump’s rationale that the classified documents seized on Aug. 8 might be his property, rather than the government’s. The appeals court also disagreed with the rationale used by U.S. District Judge Aileen M. Cannon in agreeing to have the classified documents reviewed by a special master to see if they should be shielded from investigators because of executive or attorney-client privilege.

“For our part, we cannot discern why [Trump] would have an individual interest in or need for any of the one-hundred documents with classification markings,” the court wrote, noting that the stay it issued is temporary and should not be considered a final decision on the merits of the case.

The status of key investigations involving Donald Trump

The lower court “abused its discretion in exercising jurisdiction ... as it concerns the classified documents,” the panel wrote in a 29-page opinion. Two judges on the panel were appointed by Trump; the third was appointed by President Barack Obama.

A Trump spokesman did not immediately respond to a request for comment. In an interview Wednesday with Fox News that was recorded before the appeals court issued its ruling, Trump claimed he had declassified the documents, and he suggested there would not have to be any written record of such an action.

“I declassified the documents when they left the White House,” Trump said. “There doesn’t have to be a process as I understand it. You’re the president of the United States, you can declassify … even by thinking about it.”

Trump says presidents can declassify docs ‘even by thinking about it’

The panel found particularly unpersuasive the repeated suggestions by Trump’s legal team that he may have declassified the documents — citing an appearance by Trump’s attorneys on Tuesday before special master Raymond Dearie, who pressed them to say whether the former president had acted to declassify the materials in question.

“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. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents,” the panel 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.”

Last week, the Justice Department filed papers asking the appeals court to quickly assess part of Cannon’s decision in which she appointed a special master to review the seized documents.

Prosecutors have said that two parts of her order — allowing the special master to review the roughly 100 documents that were marked classified and halting the criminal investigation surrounding those documents while the special master conducts a review — jeopardize national security interests.

Cannon, a federal judge in Florida, appointed Dearie, a federal judge in New York City, to serve as special master and review the roughly 11,000 documents and items seized in the FBI’s search.

The Post's Perry Stein explains how a special master will identify if any documents seized by the FBI are protected by attorney-client or executive privilege. (Video: The Washington Post)

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The Justice Department had previously asked Cannon to reconsider those two elements of her order, but she declined in a written order that repeatedly expressed skepticism of the government’s claims about the case.

In particular, Cannon said that a risk assessment of the case, conducted by the Office of the Director of National Intelligence, could continue, while the criminal investigators were not allowed to use the classified documents for the time being.

The Justice Department said such a distinction was impractical because much of the DNI’s work would necessarily be done by FBI agents, and the two tasks were “inextricably intertwined.” Cannon did not accept that characterization and held to her original determination.

But the appeals court rejected her reasoning on that issue, writing: “This distinction is untenable.” The panel also used its ruling to offer a public primer on how the government classifies and declassifies government secrets, and why that process is important.

“For example, information that could reveal the identity of a confidential human source or that relates to weapons of mass destruction is exempted from automatic disclosure,” the judges wrote.

Prosecutors have said in court papers that some papers seized from Mar-a-Lago contained information related to programs that involve intelligence gleaned from human sources. The Washington Post has reported that one document recovered by FBI agents described a foreign government’s military defenses, including its nuclear capabilities.

The Justice Department told the appeals court that it disagrees with Cannon’s decision, but it asked the court to issue a stay of “only the portions of the order causing the most serious and immediate harm to the government and the public,” calling the scope of its request “modest but critically important.”

Trump’s lawyers countered with their own filing, urging the appeals court not to intercede, suggesting that the documents marked classified may not in fact be classified and arguing that if they are, it is up to the government to prove it.

The appeals court decision simplifies the special master’s work, removing the classified documents from the equation — though Dearie had signaled at a meeting Tuesday that he would probably avoid reviewing the classified documents if he could.

At Tuesday’s hearing, Justice Department lawyers had indicated that they might appeal the issue to the Supreme Court if they lost at the 11th Circuit; it is unclear if Trump’s legal team would file such an appeal now that the panel has ruled against them.