In the long run, the appeals court is probably doing Trump a favor.
The Eleventh Circuit federal appeals court has granted the Justice Department’s requests that it be permitted to (a) withhold approximately 100 documents bearing classification markings from a special-master review, and (b) continue to use those documents in the ongoing criminal investigation of former president Donald Trump’s suspected felony mishandling of national-defense secrets.
The 29-page ruling, issued Wednesday night, is a thoroughgoing rebuke of Florida federal district judge Aileen Cannon, who directed that all of the approximately 11,000 documents and 1,800 other items seized by the FBI from Trump’s Mar-a-Lago estate, including the classified documents, be included in a special-master review.
Judge Cannon, a Trump appointee, granted Trump’s application that a special master be appointed to review the Mar-a-Lago seizures to ensure that prosecutors could not exploit information Trump claims is covered by executive privilege and attorney-client privilege. The ruling overlooked the facts that Trump waited two weeks to seek a special master, that Cannon herself waited another two weeks to grant it, and that the Justice Department by then had completed its unilateral privilege review, which had been approved by the magistrate judge who issued the search warrant.
The appeals court’s Wednesday night ruling means that the Justice Department will not be required to submit the apparently classified documents to the special master, senior federal court Judge Raymond Dearie. Because the Justice Department did not appeal Judge Cannon’s rulings except to the extent they bore on the classified documents, Judge Dearie — who was proposed by Trump’s team to serve as special master, and agreed to by prosecutors — will proceed with a review of the remaining thousands of seized items.
The Eleventh Circuit ruling, which was unanimous, was issue by a panel that included two Trump appointees, Judges Britt C. Grant and Andrew L. Basher, and an Obama appointee, Judge Robin S. Rosenbaum. It would be hard to fathom a more conclusive rejection of Judge Cannon’s ruling, notwithstanding that the government’s appeal challenged just a slice of it.
The Eleventh Circuit panel observed that on the most critical question before the court — namely, whether the government had exhibited a “callous disregard” for Trump’s constitutional rights — even Trump did not claim such a thing, and Judge Cannon concluded there was no such evidence. That alone would have been sufficient grounds to deny Trump’s special-master petition, let alone to carve the classified documents out of it.
Nevertheless, the panel proceeded to assess other relevant factors.
In concluding that Trump failed to show that he had any need for the return of the documents at issue, the panel emphasized that Trump had failed to proffer any evidence that he had declassified the documents. On that score, the court noted Trump’s resistance to Judge Dearie’s admonition that it was his burden to produce evidence of declassification (which I’ve detailed here). Regardless, the panel observed that it “could not discern” why Trump, who is no longer president, would have a need even to know about, let alone keep in his possession, classified information that is encumbered by need-to-know restrictions – restrictions “that pertain[] equally to former presidents” absent a dispensation from the incumbent president (which President Biden has not issued). Consequently, the panel rejected Judge Cannon’s speculation that Trump might have a cognizable interest in the classified documents.
The panel similarly turned aside Trump’s claim that he would suffer irreparable harm if the government were permitted to use the documents in its investigation. To the extent the former president complained about potential government leaks, the panel concluded that the overarching purpose of the investigation is to limit unauthorized disclosure of classified information. And insofar as Judge Cannon dubiously suggested that Trump had a unique interest in avoiding the stigma of potentially unwarranted prosecution, the panel pointed out that, if there were any weight to that concern, then any criminal suspect could “point to the same harm” and ask a court to thwart the government’s investigation.
Finally, the panel gave a sharp back of the hand to Judge Cannon’s expressed concern that, if the classified documents were not submitted for a privilege review by the special master, Trump would have “no legal means of seeking the return of his property for the time being.” As the panel observed, Trump’s lawyers have expressly disavowed seeking a return of the classified documents. Even were that not so, there is no reason to believe the documents marked classified are Trump’s property as opposed to the government’s.
The appeals court also agreed with the Justice Department that its criminal investigation of the mishandling of classified intelligence is “inextricable intertwined” with the intelligence agencies’ assessment of potential damage to national security that Judge Cannon has allowed to proceed. Ergo, her suspension of the criminal investigation’s use of the classified documents is “untenable.”
Moreover, the panel endorsed the government’s contention that allowing the special master and Trump’s counsel to examine highly classified information in the absence of a demonstrated “need to know” would be intolerable. Contrary to Trump’s skewed portrayal, this is not a reflection on the trustworthiness of Judge Dearie or Trump’s lawyers; it is a commonsense affirmation of the public interest in safeguarding national-defense secrets, which calls for keeping them secret unless “the most extraordinary circumstances” require disclosure. Trump, the court concluded, is very far from having established such circumstances.
The unanimous and, indeed, emphatic decision of the Eleventh Circuit panel validates the Justice Department’s calculation that it was better to appeal than to wait for Judge Dearie to — in all probability — decide the privilege issue in the government’s favor. (I had argued that the government might get uninhibited access to the documents faster if it dropped the appeal and waited the few days it would take for Dearie to reject Trump’s contentions.) Trump could seek reconsideration or an appeal to the full Eleventh Circuit, but there would be scant chance of that being entertained.
In the long run, the appeals court is probably doing Trump a favor. As I detailed in a column on Wednesday, Judge Dearie seemed poised to order Trump’s counsel to provide evidence to back up the claim that the former president declassified the documents. With the Eleventh Circuit panel having now concluded both that Trump failed to proffer such evidence and that, in any event, Trump had no cognizable interest in retaining the classified intelligence, the point is moot. Since Dearie will not weigh privilege issues in connection with the classified documents, there is no need for Trump to try to persuade him that the documents are not classified.
Bizarrely, Trump is apt to take that as encouragement to keep publicly claiming that he has declassified the documents. In the long term, those assertions are likely to be used as evidence against him. In the short term, they strengthen the hand of Justice Department prosecutors who are trying to persuade Attorney General Merrick Garland that Trump should be indicted.