The Justice Department asked a federal appeals court on Friday to overturn a judge’s appointment of an independent arbiter to review documents seized during an FBI search of former President Donald Trump’s Florida estate, arguing that a federal district court should not have exercised jurisdiction at all in the case.
Justice Department counsel argued that Trump’s failure to demonstrate that the government displayed a “callous disregard” for his constitutional rights was “reason enough to conclude that the district court erred by exercising jurisdiction in this case.”
Further, the DOJ’s appeal said that the district court made a mistake by enjoining the government from reviewing the seized records, arguing that Trump had no plausible claim of executive privilege in the case.
“Neither (Trump) nor the district court has cited any instance in which executive privilege was successfully invoked to prohibit the sharing of records or information within the Executive Branch itself,” the DOJ argued. The only case in which that argument could be made, they added, was when Nixon sought privilege against his own Executive Branch — a claim rejected by the U.S. Supreme Court.
The appeal is the latest salvo in weeks of litigation over the scope of duties of the arbiter, also known as a special master. He was assigned last month by a judge to inspect the thousands of records taken in the Aug. 8 search of Mar-a-Lago and weed out from the investigation any documents that may be protected by claims of legal privilege.
The special master process has caused some delays to the Justice Department’s investigation into the storage of top-secret documents at the home. But a major hurdle was cleared last month when the U.S. Court of Appeals for the 11th Circuit lifted a temporary bar on the department’s ability to use the seized classified documents as part of its criminal probe.
The move permitted a core aspect of the probe to resume, greatly reducing the chances that the special master process could have a significant impact on the investigation.
That ruling, department lawyers said, actually strengthens this appeal. They argued that the court, by following the conclusions reached to lift the earlier injunction, “should now reach the same conclusion” with all of the documents at issue.
“Plaintiff has no plausible claim of executive privilege as to any of the seized materials and no plausible claim of personal attorney-client privilege as to the seized government records — including all records bearing classification markings,” according to the department’s brief.
“Accordingly,” they added, ”the special-master review process is unwarranted.”
