Hiding behind the horror of 9/11, the Biden administration demands that a federal judge and the country trust its targeting of a top political opponent—all while leaking details of classified documents to a pliant press.
This development and six others flow from recent court filings in former President Donald Trump’s efforts to obtain a special master’s oversight of the FBI’s seizure of thousands of documents and personal effects from his Mar-a-Lago home. The government doesn’t want to allow an independent review of the documents it’s seized. Trump’s legal team does.
First, The Backdrop
Three days after the August 8, 2022, raid om Trump’s Florida home, an attorney representing the former president spoke with Jay Bratt, the chief of the Counterintelligence and Export Control Section of the Justice Department’s National Security Division. Bratt has apparently been leading the investigation into the former president.
Trump’s lawyer asked Bratt “to agree to the appointment of a Special Master to protect the integrity of privileged documents.” Bratt refused. A week-and-a-half later, Trump filed a separate action in a Florida district court seeking judicial oversight and the appointment of a special master.
Federal judge Aileen Cannon, a Trump appointee, granted that motion last week, holding a special master shall be appointed to review the seized property, “manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property.” Significantly, Judge Cannon also entered an injunction prohibiting the government from using the documents “for criminal investigative purposes pending resolution of the special master’s review process.” The court then ordered the parties to recommend individuals to fill the special master role, along with proposed procedures for the process by last Friday.
DOJ Files a Notice of Appeal
Before submitting the list of proposed special masters and the other details ordered by Judge Cannon, the Department of Justice filed a notice of appeal with the trial court, which the Eleventh Circuit Court of Appeals then docketed, starting the appeal process. Of interest, here, the clerk of court entered a corrected notice of appeal on behalf of the government, indicating the appeal was “interlocutory.”
Generally speaking, an “interlocutory appeal” is filed before the proceedings in the lower court are final. The right to appeal interlocutorily is limited, but federal rules of procedure provide for jurisdiction over an interlocutory appeal where a party challenges the issuance of an injunction.
In this case, because the Biden administration seeks to challenge the trial court’s issuance of a preliminary injunction barring the government from using the seized materials “for criminal investigative purposes pending resolution of the special master’s review process,” the Eleventh Circuit has jurisdiction to hear this interlocutory appeal.
What issues the Eleventh Circuit will address as part of the interlocutory appeal, such as the propriety of the appointment of a special master, present a different question, however. A federal appellate court with jurisdiction to review, interlocutorily, a lower court’s decision granting an injunction may also review other interrelated issues decided by the trial court. Significantly, it is a may and not a must, meaning the federal appellate court holds discretion to decide whether to review ancillary, albeit interconnected, issues.
The Biden administration has not yet filed its brief on appeal, but it seems likely that the government will ask the Eleventh Circuit to review Judge Cannon’s decision appointing a special master at the same time the appellate court addresses her decision enjoining the DOJ from using the seized materials for “criminal investigative purposes.” Trump will likely oppose any review of the decision to appoint a special master. But it is too early now to predict what issues the Eleventh Circuit will take up.
Biden Admin Claims Terrorism Requires a Stay
In addition to filing a notice of appeal, the Biden administration filed a motion for a partial stay of the injunction, asking Judge Cannon to “stay” or put on hold the injunction to the extent it “(1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings that were recovered pursuant to a court-authorized search warrant and (2) requires the government to disclose those classified records to a special master for review.” The government further asked the court to rule promptly on its motion, telling Cannon that if she does not stay those portions of the order by Sept. 15, the government would seek a stay from the Eleventh Circuit.
While stressing that it disagrees with the court’s injunction, broadly speaking, the Biden administration limited its request for a stay to those portions of the order affecting the seized documents bearing a classification marking. In arguing for a stay, the government attempts to present the request as a matter of vital national security, even evoking 9/11 to frame their argument.
“The FBI itself is part of the Intelligence Community, and since the 9/11 attacks, the FBI has integrated its intelligence and law enforcement functions when it exercises its national security mission,” the government stressed in its motion. Further, the FBI conducts investigations that “may constitute an exercise both of the FBI’s criminal investigation authority and of the FBI’s authority to investigate threats to the national security.” In this case, the government then noted, “the same personnel from the FBI involved in the criminal investigation were coordinating appropriately with the IC in its review and assessment.”
According, while the court “specifically authorized the Office of the Director of National Intelligence (‘ODNI’) to continue with “the classification review and/or intelligence assessment,” the government argues that the injunction’s application to the records bearing classification markings “would thus frustrate the government’s ability to conduct an effective national security risk assessment and classification review and could preclude the government from taking necessary remedial steps in light of that review—risking irreparable harm to our national security and intelligence interests.”
The Biden administration’s claimed urgency strikes a surreal chord given that the DOJ waited six months to seize the classified documents after learning materials returned to the National Archives and Records Administration included documents bearing the classification markings. Further, given that the government has already segregated those 100 documents, a special master could expeditiously review the material, limiting the supposed harm to our national security and intelligence interests.
How Judge Cannon, and ultimately the Eleventh Circuit, will rule on the motion remains to be seen. Trump’s legal team still has a chance to respond to that motion by 10 a.m. today.
Biden Admin Seeks to Relitigate Trial Court’s Order
The government’s motion to stay also, in effect, attempts to reargue the DOJ’s position that there is no basis for a special master to review the documents bearing classification markings. The arguments presented in the motion thus serve as a preview of those the government will likely make to the Eleventh Circuit.
First, the government maintains that because the documents bearing classification marking cannot possibly be private records in which Trump has an interest, the court lacked the authority to appoint a special master to review those documents. But this argument presumes the government can be trusted—something Judge Cannon called into question given the mistakes made concerning documents preserved by attorney-client privilege. At a minimum, then, the special master’s review of the documents bearing classification markings provides assurances that the agents reviewing the documents properly segregated them.
The government also challenged Judge Cannon’s view that the special master should review the documents for potential executive privilege. According to the DOJ, as part of the executive branch, it has complete authority to review the documents marked classified and Trump has no right to assert executive privilege.
In enjoining the government from using the seized documents as part of its criminal investigation, Judge Cannon stressed that the question is not that simple. She is right. Because of a dearth of cases law, there is no clear answer to the scope and limits of executive privilege. Some parameters appear clear, however, such as that documents privileged by executive privilege cannot be used by the grand jury, yet the DOJ can nonetheless review those documents.
A problem arises, however, if the same FBI agents who reviewed documents protected by executive privilege then present a criminal case to a grand jury, taking advantage of the knowledge they gleaned from the content of the privileged documents. The FBI avoids that problem with documents protected by attorney-client privilege by using a taint team to review the material for privileged communications. The taint team ensures the investigative agents, who may later present a case to a grand jury, have no exposure to the material protected by attorney-client privilege.
The government and critics of Judge Cannon’s opinion fail to appreciate that absent a “taint team” to review any documents protected by executive privilege, the investigative agents may improperly use their knowledge during grand jury proceedings. Having a special master identify documents potentially protected by executive privilege provides a mechanism for both the DOJ and Trump to address the effects (or lack thereof) of the potential executive privilege claim.
Unsurprisingly, there is no case law considering these points because the targeting of a former chief executive in this situation has never occurred before. But handling executive privilege similarly to attorney-client privilege makes sense, which explains Judge Cannon’s ruling last week—a ruling the government ignores in its motion to stay.
Biden Admin’s Request Proves Trump’s Point
Another significant point from last week’s filings comes from the government’s argument in its motion to stay. In arguing against Judge Cannon’s order that it not use the materials seized “for criminal investigative purposes pending resolution of the special master’s review process,” the Biden administration proves the need for a special master.
Throughout its motion, the government stresses the interconnectedness of the criminal and intelligence community’s work. The FBI uses the intelligence community’s classification review “to inform its ‘criminal investigation into the potential mishandling of . . . national defense information,’ as to which classification status is highly relevant,” the government highlights.
“The government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised,” the DOJ continues, adding that “that inquiry is a core aspect of the FBI’s criminal investigation.” For these reasons, the DOJ argues it cannot separate the intelligence aspect of the investigation from the criminal investigation aspect.
In its motion to stay, the Biden administration further argues:
The integration of the FBI’s criminal investigative and national security-related missions would also make it exceedingly difficult to bifurcate the FBI personnel working on the criminal investigation from those working in conjunction with other departments or agencies in the [Intelligence Community.] Any FBI agent or analyst who investigated whether the classified records were improperly accessed, for instance, would by definition be gathering information highly relevant to—and thus in furtherance of—’criminal investigative purposes.’ And such bifurcation would make little sense even if it were feasible, given that the same senior DOJ and FBI officials are ultimately responsible for supervising the criminal investigation and for ensuring that DOJ and FBI are coordinating appropriately with the IC on its classification review and assessment.
These arguments seek to force the court into allowing its criminal investigation to continue prior to the special master’s review, by framing the court’s order as effectively halting intelligence agencies’ work protecting our national security interests. Beyond creating a false dilemma, the government’s argument proves precisely why a special master is needed to assess privilege: because the Biden administration’s review of the documents, including potentially privileged documents, concerns its criminal targeting of Trump.
Full Tilt to Target Trump Before Midterms
The argument and analysis presented in the government’s motion reveals another reality: The Biden administration intends to pursue a criminal case against Trump, likely before the 2022 midterms. After the first wave of shock over the raid of the former president’s home passed, the conversation quickly turned to the end goal. Would the government be content with retrieving the documents, or was the government intent on indicting Trump?
While not conclusive, the government’s motion strongly suggests the Biden administration is all-in on pursuing a criminal case against the former president. Every word of the DOJ’s motion frames the case as representing a serious affront to national security and one deserving of criminal penalties.
For example, the Biden administration argues that “without a stay, the government and public also will suffer irreparable harm from the undue delay to the criminal investigation.” “The public has an ‘interest in the fair and expeditious administration of the criminal laws,’” the brief continues, adding that “any delay poses significant concerns in the context of an investigation into the mishandling of classified records.” “The government’s need to proceed apace is particularly heightened where, as here, obstructive acts may impede its investigation,” the Biden administration further stresses.
A few months’ delay to allow the special master to review the documents, however, is far from an “undue delay,” unless the Biden administration’s focus isn’t a “fair and expeditious administration of the criminal laws,” but midterm elections.
Only Leaks Are Allowed to See the Light of Day
In seeking to expedite its criminal investigation and in opposing the special master, the Biden administration relies heavily on its claims that the documents marked classified put the country at grave risk. But as Trump’s lawyers note in their briefing, material once classified does not always remain classified. This concerns not merely the documents Trump declassified, but that other documents, such as the former president’s travel itinerary, lose any top-secret nature with time.
The Biden administration clearly wants Americans to believe the documents Trump had at Mar-a-Lago represent serious threats to our national security, as evidenced not merely by the court filings but by the many leaks to the press. To protect that narrative, the DOJ remains adamant that the special master not have access to the documents it has segregated as marked classified.
The Biden administration argues it “will also suffer irreparable harm if . . .it is forced to disclose classified materials outside the Executive Branch in circumstances where there would be no valid purpose served by such disclosure.” But, as Judge Cannon detailed, there are several valid purposes, including ensuring the documents were properly segregated and do not involve privileged documents.
Further, transparency proves especially important in this case, where “concerns about the perception of fair process are heightened where, as here, the Privilege Review Team and the Investigation Team contain members from the same section within the same DOJ division, even if separated for direct reporting purposes on this specific matter.” “[P]rosecutors have a responsibility to not only see that justice is done, but to also ensure that justice appears to be done,” Judge Cannon stressed.
Beyond these points, there is the irony that while the government bemoans the use of a special master, it continues to leak to the press supposed details about their content. History also teaches that the more the government screams about the need to keep supposedly classified information secret, the more likely the details represent not national security intel but information harmful to the deep state.
Master Names Floated, Including a DNC Donor
On Friday, the DOJ and Trump filed a joint response to the court’s order, setting forth individuals to serve as the proposed special master. On the DOJ side, the Biden administration recommended retired federal judges Barbara S. Jones and Thomas B. Griffith. Jones is a Democratic National Committee and Act Blue Donor, while Griffith appears a Biden favorite, having previously been called to serve on a committee to reform the Supreme Court.
Trump’s legal team proposed Judge Raymond Dearie and Florida’s former deputy attorney general, Paul Huck Jr. While likely similarly biased, but in Trump’s favor, that is precisely what is needed to ensure that the Biden administration’s DOJ isn’t playing fast and loose with the facts.
For all these developments, there will be many more over the next week, with the government filing its opening brief in the Eleventh Circuit. Trump’s legal team will also be responding shortly to the Biden administration’s motion to stay and Judge Cannon will need to rule on that motion. Should she deny the motion, the government will then seek a stay from Eleventh Circuit. Judge Cannon must also decide on the individual to appoint as a special master and whether he (or she) will have access to the documents marked classified.
With every development, there will be more media coverage of Trump and the raid—and less of the disastrous condition Biden and Democrats have put the country in over less than two years.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.
Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.
As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.