Judges on the 11th Circuit Court of Appeals on Tuesday expressed deep skepticism about former President Trump’s lawyers’ arguments that an independent arbitrator is needed to review documents seized by the FBI from Trump’s Florida residence.
During the roughly 40-minute hearing, the three-judge panel, including two appointed by Mr. Trump, questioned his claims that the unusual circumstances of the case required an independent arbitrator, known as a special master.
The meeting in a federal courtroom in Atlanta was the first major action between Mr. Trump’s legal team and the Justice Department since Attorney General Merrick Garland appointed veteran prosecutor Jack Smith as a special counsel in Mr. Trump’s criminal investigations.
Minutes before the hearing, Mr. Trump’s lawyers asked another federal court to order the Justice Department to turn over a redacted version of the affidavit used to justify the Mar-a-Lago search. Mr Trump’s lawyers say they should check the affidavit for accuracy and “misleading omissions”.
At the appeals court hearing, Trump’s attorney, James Trusty, said his client’s unique status as a former president under criminal investigation warrants additional scrutiny of the Justice Department’s actions.
But 11th Circuit Chief Judge William H. Pryor Jr., who was appointed by President George W. Bush, repeatedly questioned why a special master should intervene in a case before an indictment has been made. Judge Pryor said it would set a bad precedent that would allow other criminal investigations to drop cases while seeking a special master.
Judge Pryor also questioned whether Mr. Trump’s legal team had presented any evidence of wrongdoing by the Justice Department to require a special master.
“If you can’t install it, then what are we doing here?” Judge Pryor asked.
Mr. Trusty acknowledged that the FBI’s search of Mr. Trump’s Mar-a-Lago residence was no different than a normal criminal investigation, except that Mr. Trump is a former president.
“We are talking about an extreme situation,” Mr Trusty said. “We are not looking for special treatment for President Trump. We recognize that there is some context here.”
Justice Department lawyer Sopan Joshi called the appointment of the special master, Senior District Judge Raymond Deary, “an extraordinary judicial intervention.”
Mr. Joshi said he could find no other example of a judge closing a criminal investigation when there was no evidence of an illegal government search. He noted that Mr. Trump’s legal team had obtained copies of all the seized documents, except those marked classified.
“He wants to stop the government from using the documents, and I’m not sure that’s ever going to be a valid excuse [for the special master]” Mr. Joshi said of Mr. Trump.
The three-judge panel mostly spent its time aggressively challenging Mr. Trump’s lawyers, suggesting the court gave him a break that is rarely given to typical suspects before an indictment.
“Has there ever been an exercise of this kind of jurisdiction where there is no evidence that the seizure was unlawful,” Justice Pryor asked Mr Trusty, who could not give an example.
Judge Britt Grant, also a Trump appointee, later noted that Mr. Trump “didn’t really make much of an effort to demonstrate a specific need.”
Prosecutors are looking into whether Mr. Trump illegally handled scores of White House documents, including some marked “secret” or “top secret,” by sending them to his residence instead of the National Archives in the final days of his administration.
Earlier this year, U.S. District Judge Eileen Cannon, a Trump appointee, appointed Judge Deary as a special master to review documents to see if something should be protected by attorney-client or executive privilege and thus off-limits to federal investigators.
The Justice Department appealed the decision, saying Judge Cannon did not have the authority to appoint a special master and the move was unnecessary.
Mr. Trump pushed for the special master, arguing that the documents are personal and should be protected from investigators. His legal team says the special master is critical to combating what they say is prosecutorial bias against the former president.
That dispute sent the case to the Court of Appeal. A third judge on the panel, Andrew Brasher, was also appointed by Mr. Trump.
Despite the group’s conservative background, they have been highly critical of Mr. Trump’s efforts to slow down the investigation. They ruled against him last month after the Justice Department requested a retrial of part of the investigation that had been suspended by Judge Cannon.