The DOJ is about to run up against a Trump-packed appeals court as it fights the appointment of a special master in the Mar-a-Lago case
- DOJ is appealing an order restricting the review of records seized from Trump's Mar-a-Lago estate.
- The trial judge's order was widely panned as an unwarranted interjection into a criminal inquiry.
In late summer 2018, then-Judge Brett Kavanaugh was not spending much time at the US Court of Appeals for the DC Circuit as he met with senators in preparation for a contentious Supreme Court confirmation process.
But one Tuesday that August, Kavanaugh emerged at the DC Circuit for the swearing-in of a former law clerk, Britt Grant, to the federal appeals court in Atlanta. In a ceremonial courtroom adorned with statues of Moses and Hammurabi, Kavanaugh praised his 40-year-old former clerk's quick rise through the legal ranks — from DC Circuit clerk to associate at the law firm Kirkland & Ellis, to solicitor general of Georgia, to justice on the state's supreme court, to judge on the US Court of Appeals for the 11th Circuit.
The swearing-in ceremony was a celebration of just one of the six judges former President Donald Trump would appoint by the end of his term to the 11th Circuit, an appeals court where his administration left a particularly lasting mark in its frenzied push to fill the federal bench.
Four years later, that court is positioned to hear a high-stakes dispute between the Justice Department and Trump over the FBI's search of his Mar-a-Lago home last month. On Thursday, the Justice Department asked a federal judge to overturn a key part of a controversial ruling that blocked investigators from reviewing classified materials seized from Mar-a-Lago and signaled plans to appeal the decision to the 11th Circuit in the interest of national security.
In an order widely criticized for its dubious claims about executive privilege and unusual solicitude to Trump's demands, Judge Aileen Cannon blocked federal prosecutors from further examining the materials until an outside arbiter — known as a "special master" — completed an independent review.
With the opinion, Cannon effectively paused a key facet of the Justice Department's criminal inquiry into whether the former president violated the Espionage Act and other federal laws that bar the concealment, alteration, and destruction of government records.
Cannon, a Trump appointee confirmed in 2020, conferred on the special master broad powers that went beyond filtering records potentially subject to attorney-client privilege to also include documents that might be subject to claims of executive privilege.
In her ruling, Cannon included a carve-out allowing for intelligence agencies to continue an assessment of the potential national security risks posed by Trump's hoarding of government records at his West Palm Beach estate. But in its appeal Thursday, the Justice Department said the national security assessment could not be "readily segregated" from the criminal investigation.
Amid uncertainty about the ruling, intelligence agencies have temporarily paused the "critically important work" of assessing the national security threat posed by Trump's handling of government materials, the Justice Department added. "Moreover, the government and the public are irreparably injured when a criminal investigation of matters involving risks to national security is enjoined."
The Justice Department asked Cannon to exclude all documents with classification markings from any special master review while its appeal is pending before the 11th Circuit. If Cannon declines to grant the stay by September 15, "the government intends to seek relief from the Eleventh Circuit," the Justice Department said.
"In order to assess the full scope of potential harms to national security resulting from the improper retention of the classified records, the government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised," wrote Jay Bratt, a top official in the Justice Department's national security division, in the filing. "But that inquiry is a core aspect of the FBI's criminal investigation."
The makeup of the 11th Circuit, with its majority of Trump-appointed judges, is among the potential challenges the Justice Department will confront as it responds to Cannon's decision.
Ahead of Thursday's filing, legal experts said the Justice Department would typically appeal such a far-reaching interjection into a criminal investigation without hesitation. But some pointed to practical considerations, including the current composition of the appellate court, as potentially weighing in favor of taking a path of less resistance to avoid a full-scale appeal that could further hinder the criminal investigation.
"There's a lot of potential for delay here in an appeal. And it's very complicated," said Joyce Vance, a former US attorney in Alabama, which falls within the 11th Circuit along with Florida and Georgia.
Vance noted that Cannon is "just one district judge in Southern Florida," and that her ruling is not binding for other jurists on trial courts in the 11th Circuit.
"But if you're in the 11th Circuit, you're maybe not too happy having this opinion sitting out there. Opinions like this have a way of growing legs," she said ahead of the Justice Department's filing Thursday.
In recent days, senior department officials reportedly considered a number of less risky moves, such as asking Cannon to reconsider part — or all — of her ruling or requesting limits on the time and scope of the special master review. The Justice Department ultimately urged Cannon to revisit her initial ruling regarding classified documents while signaling it would bring a broader appeal before the 11th Circuit.
"The classified records are government property over which the Executive Branch has control and in which Plaintiff has no cognizable property interest," the Justice Department wrote, referring to Trump.
Cannon asked for recommendations by Friday from the Justice Department and Trump for candidates to serve as the special master, along with procedures for the arbiter's review. In its filing Thursday, the Justice Department said it planned to "provide its views on those issues" by the Friday deadline.
David Weinstein, a former federal prosecutor in South Florida, told Insider that an appeal was necessary to address the immediate and long-term ramifications of Cannon's ruling "for every other case, in any district, where an aggrieved party would seek to insert a special master in between law enforcement and whatever items they seize during a search."
Weinstein added that although six of the appeals court's 11 active judges are Trump appointees, the 11th Circuit "is a conservative set of judges that very often rules in favor of the government and have done so in the past."
As is normal practice with appellate courts, the DOJ's appeal will go before a three-judge panel on the 11th Circuit. It would only go before all 11 judges in the event that the full appellate court decides to review the case in what's known as an en banc review.
Trump's mark on the judiciary
Federal judges commonly reject the notion that they're politically aligned with the president responsible for their lifetime appointments. It was a point Kavanaugh made at the August 2018 swearing-in ceremony for Grant.
"In our constitutional system, a judge must be independent, must keep an open mind in every case, and must decide cases based on the facts and the law, not based on personal or policy views," he said. "Britt Grant understands the role of a judge.
"She reveres the Constitution and she will work every day to preserve the American rule of law."
But in Cannon's ruling, many experts saw an exercise in legal gymnastics, with a judge contorting her reasoning to fit the needs of a president responsible for her nomination to the federal bench.
And in recent years, legal experts have pointed to rulings from Kavanaugh and Grant's respective courts — the Supreme Court and 11th Circuit — as undercutting the premise that federal courts operate apart from politics and partisanship.
Kavanaugh, for instance, was among the conservative justices who joined earlier this year in reversing Roe v. Wade, overturning a half-century of constitutional protection for abortion rights. For legal experts and reproductive rights advocates, it was a stunning abandonment of longstanding precedent that showed the real-world effect of Trump's judicial appointments, which deepened the high court's conservative majority to 6-3.
Trump's push to fill vacancies on the federal bench extended to lower courts. In four years, he appointed 54 appellate judges — just one short of the 55 former President Barack Obama nominated and saw confirmed during his eight years in office. With his appointments, Trump named nearly a third of the 179 federal appellate judges.
On the 11th Circuit, Trump's influence has resonated.
His appointees and their conservative colleagues made their presence known in a September 2020 opinion that allowed Florida to make it harder for felons to vote. In a 6-4 decision, the court overturned a lower court's finding that a Florida law violated felons' voting rights by requiring them to pay fines, restitution and legal fees after serving time and before casting ballots.
All of the dissenting judges were Democratic appointees.
"Every person who becomes a federal judge gets there because they've been appointed by a president of one party or another," Vance said.
Still, she said, "I really think that, in most cases, judges aren't creatures of the party that puts them on the bench. That's sort of a broad-brush statement that I might have been more comfortable making before we confronted the realities of the post-Trump Supreme Court."
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