The DOJ will face an appeals court full of trumps in a special master fight


  • The DOJ is appealing an order restricting review of records seized from Trump’s Mar-a-Lago estate.
  • The trial judge’s order was widely characterized as an improper interference in a criminal investigation.
  • The appeal will go to the 11th Circuit, where six of the 11 active judges are appointed by Trump.

In late summer 2018, then-Judge Brett Kavanaugh was not spending much time on the United States Court of Appeals for the DC Circuit as he met with senators in preparation for a controversial Supreme Court confirmation process.

But on a Tuesday in August, Kavanaugh emerged at the DC Circuit for the swearing-in of a former lawyer, Britt Grant, to the federal appeals court in Atlanta. In a courtroom adorned with statues of Moses and Hammurabi, Kavanaugh hailed his 40-year-old former clerk’s rapid rise through the legal ranks – from DC circuit clerk to partner at law firm Kirkland & Ellis , to Solicitor General of Georgia, to Judge of the State Supreme Court, to judge at the United States Court of Appeals for the 11th Circuit.

The swearing-in ceremony was a celebration of just one of the six justices former President Donald Trump would appoint by the end of his term on the 11th Circuit, an appeals court where his administration left a particularly lasting mark. in his frantic push to fill the federal bench.

Four years later, this court is set 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 formally announced its intention to appeal a controversial decision that granted Trump’s request for an outside arbitrator to review the more than 11,000 documents recovered from his South Florida residence on August 8.

In an order widely criticized for its questionable assertions of executive privilege and unusual solicitude for Trump’s claims, Judge Aileen Cannon blocked federal prosecutors from further reviewing the documents until the arbitrator exterior – known as the “special master” – has completed the examination.

With this notice, Cannon effectively suspended a key aspect of the Justice Department’s criminal investigation into whether the former president violated the Espionage Act and other federal laws prohibiting concealment, alteration, and destruction of government documents.

Cannon, a Trump appointee confirmed in 2020, gave the special master sweeping powers that went beyond screening records potentially subject to solicitor-client privilege to also include documents that could be the subject of claims. of executive privilege.

In his ruling, Cannon included an exclusion allowing intelligence agencies to pursue an assessment of potential national security risks posed by Trump’s hoarding of government records at his West Palm Beach estate. But in its appeal on Thursday, the Justice Department said the national security assessment could not be “easily separated” from the criminal investigation.

Amid the uncertainty surrounding the decision, intelligence agencies have temporarily suspended “critically important work” assessing the national security threat posed by Trump’s handling of government records, the Justice Department added. . “Furthermore, the government and the public are irreparably harmed when a criminal investigation into matters involving national security risks is ordered.”

The Justice Department has asked Cannon to suspend — or suspend — key elements of his decision while his appeal is pending before the 11th Circuit. If Cannon declines to grant the stay by Sept. 15, “the government intends to seek relief from the Eleventh Circuit,” the Justice Department said.

The makeup of the 11th Circuit, with its majority of Trump-appointed judges, is among the potential challenges the Justice Department will face in responding to Cannon’s ruling.

Ahead of Thursday’s filing, legal experts said the Justice Department would generally appeal an interjection of such scope in a criminal investigation without hesitation. But some pointed out that practical considerations, including the current makeup of the appeals court, potentially weighed in favor of a path of least resistance to avoid a full-scale appeal that could further hamper 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 U.S. attorney in Alabama who serves on the 11th Circuit with Florida and Georgia.

Vance noted that Cannon is “only a district judge in South Florida” and his ruling is not binding on other 11th Circuit trial court attorneys.

“But if you’re in the 11th Circuit, you might not be too happy to have that opinion there. Opinions like that have a way of pushing your legs,” she said. ahead of the Justice Department filing on Thursday.

In recent days, senior department officials have reportedly considered a number of less risky steps, such as asking Cannon to reconsider some — or all — of its decision or asking for limits on the length and scope of the review. special principal. The Justice Department ultimately decided to go to the 11th Circuit while urging Cannon to reconsider its original decision.

David Weinstein, a former federal prosecutor in South Florida, told Insider an appeal was needed to address the immediate and long-term ramifications of Cannon’s decision “for all other cases, in any district. , where an aggrieved party would seek to insert a special restraint between law enforcement and the items they seize during a search.”

Weinstein added that although six of the 11 active appeals court judges are appointed by Trump, the 11th Circuit “is a conservative set of judges who very often rule 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 to a three-judge panel on the 11th Circuit. He would only go before the 11 judges in the event that the full appeals court decides to re-examine the case in what is known as en banc review.

Former President Donald Trump.

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Trump’s mark on the justice system

Federal judges generally reject the idea that they are politically aligned with the president responsible for their lifetime appointments. It was a point Kavanaugh made during the August 2018 swearing-in ceremony for Grant.

“In our constitutional system, a judge must be independent, must keep an open mind in all cases, and must decide cases based on the facts and the law, not on the basis of personal or political opinions,” did he declare. “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 decision, many experts saw an exercise in legal gymnastics, with a judge twisting his reasoning to suit the needs of a president responsible for his federal judicial appointment.

And in recent years, legal experts have pointed out that the decisions of Kavanaugh’s and Grant’s respective courts — the Supreme Court and the 11th Circuit — undermine the premise that federal courts operate outside of politics and partisanship.

Kavanaugh, for example, was among the conservative justices who joined earlier this year in overturning Roe v. Wade, undoing half a century of constitutional protection of the right to abortion. For legal experts and reproductive rights advocates, it was a stunning abandonment of long-standing precedent that showed the real 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 has extended to the lower courts. In four years, he has appointed 54 appellate judges – only one less than the 55 former President Barack Obama appointed and confirmed during his eight years in office. With his nominations, Trump has appointed almost a third of the 179 federal appellate judges.

On the 11th Circuit, Trump’s influence resonated.

His appointees and fellow conservatives made their presence known in a September 2020 notice 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’ right to vote by requiring them to pay fines, restitution and legal fees after serving their sentence and before voting.

All of the dissenting justices were appointed by Democrats.

“Every person who becomes a federal judge gets there because they were nominated by a president of one party or another,” Vance said.

Yet, she says, “I really think that in most cases judges are not creatures of the party that benches them. It’s kind of a sweeping statement that I might have been more comfortable doing before confronting the realities of the post-Trump Supreme Court.”

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