On Friday night, the Biden Administration’s Justice Department asked a federal appeals court to speed up its review of a federal case over government seizure of secret documents from former President Donald Trump’s Mar a Lago resort in Florida.
The after-hours filing with the Eleventh Circuit Court of Appeals was clearly aimed at shutting down the actions of a a Florida trial judge who, the Department contended, is still actively interfering with the government’s criminal investigation of Trump.
The Department acted just hours after U.S. District Judge Aileen Cannon of West Palm Beach had spared Trump’s lawyers from having to file a potentially damaging report to the other federal judge, named by Cannon as a “special master” to oversee Trump’s claim that he has a legal right to return many of the documents taken by the FBI.
The special master, U.S. District Judge Raymond Dearie of Brooklyn, N.Y., had ordered Trump’s team to provide evidence to support their claims that the FBI raid took more documents than the government has admitted, and may have planted documents at the resort. The evidence demand could have required the Trump lawyers to admit facts about how the documents were handled, perhaps contributing to Trump’s legal risks. Judge Cannon, acting on her own on Thursday, blocked that order by Judge Dearie.
In turning quickly to the Court of Appeals, the Department renewed its argument that Judge Cannon lacked any authority to take on Trump’s demand for return of documents, had no power to send the document processing dispute to Judge Dearie, lacked authority to decide Trump’s claims of privacy or ownership of documents, and lacked power to temporarily block Justice Department use of the documents it had seized at the resort.
The filing noted that the Court of Appeals had already expressed skepticism that Judge Cannon had authority to proceed as she had, especially in her order temporarily forbidding the Justice Department from making any use in a criminal investigation of some 100 documents marked classified.
Earlier this month, the appeals court had overturned Judge Cannon on that point. The skepticism expressed then, the Department asserted, was appropriate for all of what Judge Cannon has undertaken.
The Court of Appeals this week had set a schedule for filing of legal briefs in the Justice Department’s appeal, but the new filing on Friday argued that those dates might push the review on into the next year. The Department called for a briefing schedule that would be complete by November 11. It also asked the appeals court to schedule a hearing as soon as possible.
If the appeals court were ultimately to rule for the Justice Department, its new filing said, further proceedings before both Judge Cannon and the special master “would be at an end.” If the appeals court were to decide that Judge Cannon had the authority to set up the review process before Judge Dearie, the Department said, it should at least rule that Trump has no valid claim that, as a former President, he has a right to retrieve or even have access to at any of the documents.
The Justice Department, along with Trump’s lawyers, has been taking part in the document review before Judge Dearie, but in doing so it had never set aside its basic appeal to the Eleventh Circuit Court seeking to oust Judge Cannon from any part in the aftermath of the FBI seizure of documents, which the FBI did under a court-approved search warrant.
