Late on September 21, a US federal appeals court permitted the Justice Department to resume its investigation of classified documents that the FBI seized during its search of Trump’s Mar-a-Lago estate in Florida (USA). The decision is a major repudiation of the former president’s defense strategy pertaining to the government documents. It is yet another blow against the former president on the same day that he and three of his children were sued by the New York attorney general for the alleged fraudulent management of his businesses.
US District Judge Aileen Cannon, a Trump appointee, had temporarily barred investigators from continuing to use the documents in their inquiry while an independent arbiter (“special master”) conducts a separate review. The objective of the independent review was to determine whether the seized documents were protected by attorney-client privilege (communications between Trump and his attorneys) or the executive privilege, which allows the executive branch to withhold information about ongoing proceedings from another branch of government, even though Trump no longer holds a public office.
The Justice Department first appealed to Cannon to unblock the roughly 100 secret documents found in Mar-a-Lago, which almost by definition are not affected by these privileges. When Cannon rejected this appeal, the Justice Department appealed to a superior court in the state of Georgia (USA). The appeals panel then ruled in favor of the Justice Department and granted an interim injunction pending final resolution of the appeal. “We grant the stay pending appeal. The district court’s order is stayed insofar as it prohibits the government’s use of the classified documents and insofar as it requires the government to submit the classified documents to the special expert for review.”
The three-judge appeals panel has delivered a clear setback for Trump, who broke the law when he retained more than 11,000 publicly owned documents. Upon leaving office, presidents are required by law to turn over all documents and records used in office to the National Archives. But that infraction is not criminal in itself, and few would advocate charging Trump just because he took press clippings, photographs, letters and other unprotected papers. But classified documents are a different matter. If they put national security at risk, Trump may have committed a crime by violating espionage laws. Since Trump first claimed that he did not have the documents and then resisted releasing them, he is also being investigated for possible obstruction of justice. Therefore, the appeals court ruling gives the green light to the most critical aspect to the government investigation.
In its 29-page ruling, the appeals court rejected the possibility that Trump could have “an individual interest in or need for any of the roughly 100 documents with classification markings” seized by the FBI at Mar-a-Lago. “Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents.”
The appeals court also neutralized one of Trump’s defense maneuvers. Even though the former president repeatedly claimed that he had declassified all the documents, his lawyers have not openly argued that point in court, because the argument can easily be turned against him. In addition, the potential crime only pertains to removing or retaining documents that could damage national security, not other non-damaging classified documents.
“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 judge, plaintiff resisted providing any evidence that he had declassified any of these documents,” stated the appeals court ruling. “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. Therefore, even if we assume that the plaintiff declassified some or all of the documents, that would not explain why he has a personal interest in them.”
The stigma of being investigated
The appeals court rejected Trump’s argument that he would be irreparably harmed if the department investigates the documents before they are reviewed by the independent arbiter. The court pointedly noted that the former president’s lawyers have not suggested that any of the secret documents affect attorney-client privilege. Secondly, if the alleged harm is the stigma of being investigated, “all potential defendants could point to the same harm.”
The ruling is also a blow to Judge Aileen Cannon who blocked the Justice Department’s review of the documents pending the independent arbiter’s review. The appeals court agreed that the Justice Department needs the documents to investigate, “… among other things, the identity of anyone who accessed the classified material; whether any particular classified material has been compromised; and whether there may be more classified material unaccounted for.” Preventing the Justice Department from doing so could harm the government and the American people, to the extent that it poses a risk to national security.
Trump’s lawyers were already arguing with the Justice Department over the special master review being conducted by semi-retired Judge Raymond Dearie. A main sticking point was whether Trump’s defense could have accessed those documents for their own review. The appeals court ruling has settled that particular issue, at least as long as another court decision doesn’t further muddle the case.