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When it comes to the rule of law, this hasn’t been a great week for Donald Trump. On Tuesday, his own team’s handpicked special master in the Mar-a-Lago case treated the Republican’s arguments as misguided. A day later, the New York attorney general’s office filed litigation accusing him of systemic business fraud.
The news for the former president did not improve last night. NBC News reported on developments at the 11th Circuit Court of Appeals:
A federal appeals court said Wednesday that the Justice Department can resume using classified documents seized from former President Donald Trump’s Florida estate in its criminal investigation. The Justice Department had appealed a ruling this month by U.S. District Judge Aileen Cannon, a Trump appointee, that temporarily barred it from reviewing and using the seized materials for investigative purposes.
There are a few angles to this that are worth keeping in mind. The first is the ideological makeup of the appellate panel.
In the wake of Cannon’s widely panned ruling, the Justice Department was headed for the 11th Circuit, where many legal experts expected federal prosecutors to prevail. There was, however, some skepticism: A clear majority of the jurists on the 11th Circuit were appointed by Republican presidents. Should Americans expect another partisan ruling comparable to Cannon’s pro-Trump line?
Evidently not: The three-judge panel included two Trump appointees, Andrew Brasher and Britt Grant, but it nevertheless unanimously sided with federal law enforcement and agreed to block key aspects of the district court ruling.
Just as notable is the degree to which the 11th Circuit rejected Cannon’s reasoning. Neal Katyal, the former acting U.S. solicitor general, explained, “It’s really hard to lose an appeal more decisively than Trump just did.” Katyal added that the former president’s lawyers were “obliterated” by the appellate court.
Harvard Law professor Lawrence Tribe said the 11th Circuit’s ruling “reads a lot like a stern but polite reprimand of a child caught red handed who needs to be read the riot act.”
But perhaps most important are the practical implications of these developments. Team Trump made a bizarre executive privilege argument that claimed a former president could block the executive branch from reviewing and using its own materials. Cannon agreed, blocking the Justice Department’s access, and raising questions as to whether the conservative jurist even understood the concept of executive privilege.
The 11th Circuit undid this egregious mistake, telling federal officials that they can again use the classified materials retrieved from the Republican’s glorified country club.
The panel ruled that Cannon, a Trump appointee, erred when she temporarily prevented federal prosecutors from using the roughly 100 documents — marked as classified — recovered from Trump’s estate as part of a criminal inquiry.
Trump “has not even attempted to show that he has a need to know the information contained in the classified documents,” the three-judge panel ruled. “Nor has he established that the current administration has waived that requirement for these documents.”
NBC News’ report went on to note that the 11th Circuit also concluded that certain documents are deemed classified because they contain information that could harm the national security, and for that reason people may have access to them only if they need to know that information.
“This requirement pertains equally to former Presidents, unless the current administration, in its discretion, chooses to waive that requirement,” they wrote, adding that Trump hadn’t established that the Biden administration had waived its requirement for the documents.
Team Trump could theoretically file an emergency appeal with the Supreme Court, but the consensus in legal circles is that such an effort would very likely fail.
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