From the start of the 35-minute session, appeals judges aggressively challenged Trump’s legal position, suggesting he was getting accommodations that courts almost never grant to a suspect before charges are laid.
Has there ever been an exercise of this type of jurisdiction, without it being demonstrated that the seizure itself was illegal? asked Chief Justice William Pryor Jr., appointed by President George W. Bush.
Trump’s attorneys could not identify an example.
Follow-up to Trump investigations
Judge Britt Grant, a Trump appointee, later stepped in to note that Trump hadn’t really gone to great lengths to show a specific need.
The tough argument session for Trump is the latest apparent legal setback for the former president, who faces a growing set of criminal and civil threats at the start of his third full-scale presidential bid. In addition to the special lead investigation that includes the document investigation, as well as matters arising from Trump’s efforts to overturn the 2020 election, an Atlanta-area prosecutor is investigating Trump’s election scheme and the New York’s attorney general is investigating his business empire.
Trump’s legal situation appears to have worsened as his political fortunes have faded, following the defeat of several of his hand-picked candidates for the Senate, Governor and Secretary of State races. across the country. And the January 6 congressional select committee is gearing up to unload a huge cache of evidence in the coming weeks.
On Tuesday, the college of the court of appeal seemed ready to strike a new blow. The judges were particularly alarmed at the setting of a precedent that could disrupt countless criminal investigations, and they questioned whether Trump’s lawyers were seeking special treatment for the ex-president.
Arguing for Trump, attorney James Trusty insisted that was not the case and pointed to the unprecedented nature of the court-ordered search of Trump’s Florida home.
Were talking about an extreme situation, says Trusty. Were not looking for special treatment for President Trump. We recognize that there is a context here.
An order issued in August by Cannon, a Trump appointee based in Fort Pierce, Fla., also halted the government’s ability to use the records in its criminal investigation until Trump’s objections are addressed. However, in September, the appeals court granted an emergency motion from the Justice Department that effectively removed from the special basic process about 100 documents with classification marks such as top secret.
Realizing he seemed to be finding little traction with the judges, Trusty began to backtrack and appeared on the verge of conceding that it would be acceptable to lift the part of the Cannons order that prevents investigators from accessing most of the documents, as long as the Trump team can continue to assert their claims that the documents were improperly seized.
The injunction, frankly, is almost the most exaggerated part of the litigation. … What we’re trying to prevent is the amputation of thoughtful process, Trusty said. It’s deep in the process.
Trusty also maintained that the search was extremely broad and swept up incredibly personal items.
It was carte blanche, Trusty explained. That’s why they took golf shirts and photos of Celine Dion.
However, a warrant issued by a magistrate judge in an investigation into the alleged withholding of classified information, theft of government documents and obstruction of justice allowed investigators to take documents and other items located in the same folder or container as government records that typically go to the National Archives following a presidency.
The presence of personal effects along with other documents can be used by investigators to try to prove who was aware of the existence of the documents.
I don’t think it’s necessarily the government’s fault that someone intermingled classified documents and all sorts of other personal property, Pryor said.
In an unusual move signifying the importance of the case, the Justice Department dispatched a lawyer from the Solicitor General’s office, Sopan Joshi, to argue that the gun order should be dismissed.
Joshi said Trump had already had access to copies of all seized documents except those marked as classified.
What he wants is to prevent the government from using the documents, and I’m not sure that would ever be a valid justification, Joshi said.
The Justice Department started Tuesday with an advantage. Grant and Judge Andrew Brasher, both appointed by Trump himself, have sharply criticized former presidents’ efforts to impose limits on the criminal investigation. They came out against him last month after the DOJ made an emergency bid to revive aspects of his criminal investigation that had been put on hold by Cannon.
The third judge, Pryor, is a very conservative person appointed by President George W. Bush. Trump’s arguments seemed to fare no better with Pryor than with the other two appellate judges.
In September, Cannon appealed to Brooklyn U.S. District Court Judge Raymond Dearie, appointed by President Ronald Reagan, to address Trump’s objections to the search and to conduct a detailed review of the documents he says are subject to executive privilege or other protections. Dearie has been overseeing this process for more than two months, but it could end abruptly if the appeals court decides Cannon shouldn’t have appointed a special master in the first place.
Typically, prosecutors use their own mechanisms to isolate privileged files seized in an investigation, relying on a detection team or screening team of other prosecutors to segregate certain documents and interview each other. with defense attorneys to find out if the records are protected.
However, in rare cases involving searches of law firms or legal or medical records, judges have imposed the special master process in an attempt to maintain public trust. When investigators raided Trump lawyers Michael Cohen and Rudy Giuliani, for example, a retired judge was brought in to arbitrate privilege fights.
Just hours before the start of the appeals court oral argument on Tuesday, there was a signal that Trump’s team was already preparing for the possibility that he could lose the appeal.
In a 12-page filing, Trump’s lawyers asked Cannon to completely unseal the affidavit used by the FBI to justify the Mar-a-Lago search. Trump’s legal team has expressed concern that the traffic jam on Trump investigations could result in his personal records being sent to prosecutors investigating other issues related to the ex-president.
A general digging into President Trump’s business is a particularly disturbing moment in law enforcement history, Trump’s lawyers wrote in the filing, signed by attorney Lindsey Halligan. As the DOJ and some state officials engage in various efforts to investigate President Trump, the search smacks of pretextual conduct in hopes of providing personal documents to prosecutors or agents who might use them in cases. unrelated activities.
The filing was replete with references to previous decisions by Cannons, in which she berated prosecutors for alleged leaks and broadly endorsed Trump’s legal positions. If the appeal pleaded Tuesday is successful, the special master process ordered by Cannon would be scuttled and its role in the dispute could end.
While Smith now oversees the team investigating the presence of various government documents at Mar-a-Lago and possible obstruction of justice in the investigation, the longtime prosecutor was not present for the Tuesday arguments. He recently had a bicycle accident in the Netherlands, where he is pursuing Kosovo war crimes cases in The Hague, officials said. Due to the accident, Smith required knee surgery. He is taking on his new assignment remotely for now and is expected to return to the United States soon, officials said.
The Justice Department submitted an unusual brief to the 11th Circuit on Monday on behalf of Smith, advising the court of his new role and advising it that it approves of all of the arguments that were presented in the briefs and will be discussed at the hearing. pleading.
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