The 11th Circuit Court of Appeals dashed former President Donald Trump’s hopes that his attorneys could review the 100 documents marked classified that the FBI seized during a raid of his Mar-a-Lago home. Wednesday’s decision by the federal appellate court came just one day after the special master indicated no such review would take place absent evidence that Trump had declassified those documents.
While Trump could still seek intervention by the Supreme Court, given the special master’s unwillingness to give Trump’s legal team access to the documents that the FBI maintains have classification markings, Trump should drop his case and pivot to the midterms — and let the public decide whether Democrats have weaponized the Department of Justice to target the former president.
Wednesday’s decision by the 11th Circuit turned the tables on Trump, who less than one week ago appeared to have scored two huge victories in his fight to have an independent special master review the documents and items seized by the FBI during an August 8, 2022 raid of his home. The first win appeared to come when Judge Aileen Cannon appointed Trump’s preferred candidate to serve as special master, Raymond Dearie.
The second victory came from Judge Cannon’s rejection of the DOJ’s request to put on hold her earlier ruling that, pending a special master’s review of the material, the government could not use the documents seized as part of its criminal investigation. The DOJ had limited its request for a stay to only those 100-some documents that the government claimed bore classification markings.
On Friday, the DOJ filed a motion to stay with the 11th Circuit Court of Appeals, asking the appellate court to stay Judge Cannon’s order, but again, only to the extent that her order barred the government from using the 100-some documents that purportedly bore classification markings for criminal investigative purposes. The DOJ also objected to providing those documents to Special Master Dearie for his review. The 11th Circuit expedited consideration of the DOJ’s motion to stay, directing Trump to respond to the motion by Tuesday at noon.
Tuesday proved significant for another reason, with Dearie, a former FISA court judge and current senior federal judge in New York, holding his first public hearing with the parties. During that hearing, the special master indicated that unless Trump presented evidence to the court that he had declassified the 100-some documents, there was no basis for Trump’s attorneys to review that material. Dearie also suggested Trump’s attorneys would not be receiving security clearance in the near term, which would also limit their ability to review the documents of concern.
The former president’s attorneys countered that “until they see the documents, Trump’s legal team was not in a position to fully disclose their defense or specifically address the declassification issue.” While acknowledging “that there was a legal strategy at play,” Judge Dearie stressed that, “if the government gives me prima facia evidence that these are classified documents, and you, for whatever reason, decide not to advance any claim of declassification, I’m left with a prima facia case of classified documents, and as far as I’m concerned, that’s the end of it.”
Following Tuesday’s hearing, Trump and his attorneys had some tough decisions to make concerning whether to present evidence of declassification to Special Master Dearie. But the 11th Circuit’s order on Wednesday removed the decision from Trump’s hands when the three-judge panel granted the DOJ’s requested stay.
Obama Judge Robin Rosenbaum and Trump appointees Britt Grant and Andrew Brasher issued the unsigned 29-page opinion for the court that concluded the government would likely succeed on its claim that Judge Cannon erred in prohibiting the United States from using 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.” Here, the court found dispositive the fact that there was no evidence that the DOJ had displayed a callous disregard for Trump’s constitutional rights.
The 11th Circuit nonetheless added that Trump failed to show he had “an individual interest in or need for any of the one-hundred documents with classification markings.” Further, even if the documents had been declassified, Trump still hadn’t shown why he had a personal interest in the documents, the court reasoned.
In entering the stay, the federal appellate court also stressed the harm to the government the order created, relying on Alan E. Kohler Jr.’s, the assistant director of the counterintelligence division of the FBI, sworn statement that the United States’ “national-security review is inextricably intertwined with its criminal investigation.” “When matters of national security are involved, we ‘must accord substantial weight to an agency’s affidavit,’” the 11th Circuit stressed.
The 11th Circuit further found that the “public interest” favored a stay because “the documents at issue contain information ‘the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.’” Here, the court again relied on FBI Assistant Director Kohler’s declaration to support this finding.
In discussing the “public interest,” the 11th Circuit completely ignored the public’s interest in assuring an unbiased review of the documents — the concern that motivated Judge Cannon’s decision. Wednesday’s opinion instead accepted at face value everything the DOJ and FBI said: that the documents were marked classified and FBI Assistant Director Kohler’s various representations about the harm to national security and the need to advance the criminal investigation in tandem with the national security one.
Yes, that’s how courts work: The judges accept sworn statements as true and rely on the government’s word, absent conflicting evidence. But it remains hard to swallow that the courts place continued trust in a DOJ that previously submitted four fraudulent applications to the FISA courts to get Trump.
In response to Wednesday’s decision, Trump could seek the Supreme Court’s intervention, but even if Trump were to prevail with the high court, Special Master Dearie seems unwilling to allow the former president’s attorneys anywhere near the 100-some documents marked classified, unless Trump proves he declassified them. And even then, Dearie may adopt the 11th Circuit’s view that Trump has no interest in reviewing those documents. So even a win might not accomplish Trump’s goals.
Thus the 11th Circuit’s decision struck a severe blow to Trump and those seeking transparency. But rather than continue to fight this losing and expensive battle, Trump should pivot to the midterms and take his case to the public: Make the voters the judge of the Biden administration’s conduct and the Democrats’ relentless targeting of Trump and anyone who ever supported him.
The timing for this pivot couldn’t be better, with the New York attorney general filing a civil lawsuit against Trump and three of his children on Wednesday, with news breaking that the Jan. 6 Committee plans to question Ginni Thomas, and with a class-action lawsuit filed against Florida Gov. Ron DeSantis over his role in transporting illegal immigrants to Martha’s Vineyard. The recent demand by Republican senators that Attorney General Merrick Garland provide special counsel protection for the U.S. attorney investigating Hunter Biden further adds to the message of the Democrats’ weaponization of justice, by highlighting the double standard in play.
We should know soon whether Trump will continue to fight this losing battle or focus on the broader war against Democrats this November, as the special master gave Trump only until Friday to pick a vendor to handle the scanning of the 11,000 other documents not affected by the stay.
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.
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