Appeals Court Restores Justice Dept.’s Access to Sensitive Files Seized From Trump


WASHINGTON — A federal appeals court on Wednesday restored the Justice Department’s access to documents with classified markings that had been seized last month from former President Donald J. Trump’s Florida residence, handing a victory to federal investigators in their efforts to examine Mr. Trump’s hoarding of sensitive government records.

In a strongly worded 29-page decision, the United States Court of Appeals for the 11th Circuit blocked part of an order by a federal judge that had temporarily barred the department from using the classified materials in its inquiry into whether Mr. Trump illegally retained national defense documents and obstructed the government’s repeated efforts to recover them.

The Justice Department “argues that the district court likely erred in exercising its jurisdiction to enjoin the United States’ use of the classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review,” a three-judge panel wrote. “We agree.”

The panel consisted of two Trump appointees — Judges Britt Grant and Andrew L. Brasher — and Judge Robin S. Rosenbaum, an Obama appointee.

The dispute emerged after Judge Aileen M. Cannon, also an appointee of Mr. Trump, installed an outside arbiter, known as a special master, to filter the more than 11,000 documents seized in the search for any that are potentially privileged. She also barred criminal investigators from using the materials until the review was completed, and she rejected the Justice Department’s request to exempt about 100 records marked as classified from that process.

In its initial filing to the appeals court, the department accepted the special master’s review of all the documents except those bearing classification markings, narrowly tailoring its request in hopes of restoring quick access to the material at the heart of its investigation. Prosecutors argued that Judge Cannon’s temporary ban on letting them use the classified materials would hinder a separate intelligence community assessment of the risks that Mr. Trump’s hoarding of the records had on national security.

The decision by the appeals court was a striking repudiation of Mr. Trump’s attempts to claim in public, but not in court, that he had declassified the sensitive records at issue.

Mr. Trump “suggests that he may have declassified these documents when he was president,” the appeals court wrote. “But the record contains no evidence that any of these records were declassified.”

The court went on to say, “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.”

The ruling would simplify the process now underway before the special master, Judge Raymond J. Dearie, whom Mr. Trump’s lawyers had recommended for the role. If it stands, Judge Dearie will no longer have to assess the classified material and can focus his attention on the larger trove of 11,000 unclassified records.

Mr. Trump “has not even attempted to show that he has a need to know the information contained in the classified documents,” the appeals court wrote. “Nor has he established that the current administration has waived that requirement for these documents. And even if he had, that, in and of itself, would not explain why plaintiff has an individual interest in the classified documents.”

The ruling came on the same day that New York’s attorney general sued Mr. Trump after conducting a separate civil investigation into what she described as fraudulent business practices.

The ruling was the latest turn in what began as a legal sideshow to the investigation into Mr. Trump’s hoarding of government documents, including some marked as highly classified.

In mid-August, Mr. Trump’s legal team filed a lawsuit asking that the Justice Department be blocked from working with the documents. His lawyers also requested a special master with expansive authority to evaluate the documents for any that were potentially shielded by attorney-client privilege or executive privilege.

But the F.B.I. had already conducted a separate assessment to identify files that could be subject to attorney-client privilege. And Mr. Trump’s demand for a sweeping review, one subject to claims of executive privilege, was unusual, prosecutors said, noting that there was no precedent or legal basis for it. But Judge Cannon granted Mr. Trump’s request.

Judge Cannon has directed Judge Dearie to first scrutinize documents with classification markings and to submit recommendations about any materials for which Mr. Trump’s legal team and the Justice Department cannot agree.

Part of that process would mean having Mr. Trump’s lawyers themselves see the records to determine whether they are government or personal property, and whether they are potentially privileged.

But during a hearing before Judge Dearie on Tuesday, lawyers for both sides clashed over whether Mr. Trump’s legal team should be allowed to see the files.

A Justice Department lawyer said some of the files were so highly restricted that a top-secret clearance alone would not be deemed sufficient to see them.

“Some of the documents are so sensitive that even members of the team that is investigating possible offenses here have not yet been provided the clearances to see these documents,” said the lawyer, Julie Edelstein.

Another point of contention was whether Judge Dearie might require Mr. Trump or his representatives to definitively state whether he took any action to declassify the materials.

Mr. Trump has claimed publicly that he did declassify everything he took from the Oval Office, but no credible evidence has emerged to support that claim and his representatives have stopped short of repeating it in court, where it is a crime to lie. Instead, they have merely implied that Mr. Trump might have done so.

Mr. Trump’s lawyers have argued that it would be premature for them to disclose such information at this stage because it could be a defense if Mr. Trump were later to be indicted.

But the 11th Circuit’s decision to remove the documents marked as classified from the special master’s review means that Judge Dearie for now does not need to address either dispute.



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