Last night, the 11th Circuit Court of Appeal restored the Department of Justice’s access to the documents federal agents seized during their raid of Mar-a-Lago on August 8. The three-jurist panel, two of whom were Trump appointees, declared that Judge Aileen Cannon had “erred” in judgment when issuing the injunction against the Federal Bureau of Investigation from reviewing the records. She also granted the Trump legal team’s motion to appoint a special master; Raymond Dearie was the consensus choice for that role (via NYT):
A federal appeals court on Wednesday freed the Justice Department to resume using documents marked as classified that were seized from former President Donald J. Trump, blocking for now a lower court’s order that had strictly limited the investigation into Mr. Trump’s handling of government materials.
In a strongly worded 29-page decision, the United States Court of Appeals for the 11th Circuit set aside key parts of an order by a Florida federal judge that has kept the department from using about 100 files with classification markings in its inquiry into whether Mr. Trump illegally retained national defense documents and obstructed repeated efforts to recover them.
The appeals court also agreed with the Justice Department that Mr. Trump’s lawyers — and an independent arbiter recently appointed to review the seized materials — need not look at the classified documents that the F.B.I. carted away from Mr. Trump’s estate, Mar-a-Lago, on Aug. 8.
The Justice Department “argues that the district court likely erred in exercising its jurisdiction to enjoin the United States’ use of the classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review,” a three-judge panel of the appeals court wrote. “We agree.”
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Mike Davis pointed out that the appeals court did not address three crucial legal issues about the Presidential Records Act in their ruling:
11th Circuit didn't address these key legal points.
— ???? Mike Davis ???? (@mrddmia) September 22, 2022
Again, under Presidential Records Act:
1. Records "received" by the President are presidential records
2. He determines what are "personal"
2. Former Presidents get unfettered access to their records
Including classified.
Yet, this development also ties into what Matt Taibbi wrote about regarding how the Justice Department has been dangerous for years, but now—post-Trump—they’re more out of control than ever. With virtual unlimited search power, the use of TAINT teams, the folks who analyze the records seized in DOJ-approved raids, even those unrelated to the investigation and often violate attorney-client privilege, have been able to circumvent the search warrant process. In turn, federal prosecutors have threatened associates of those under the microscope of the DOJ and defense attorneys from providing exculpatory evidence. Without the cash reserves and other resources, going to war with the DOJ is foolish. The DOJ ensures the targets to make as poster children for their campaign to enhance the security state are deeply unpopular, like drug lords or a former president named Donald Trump. Their former colleagues sign media contributor contracts on news networks that parrot the DOJ talking points—and judges give the green light to continue this arguably unconstitutional expansion of search and seizure powers by the government. We just saw another stamp of approval affixed to this recent order.
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