Trump’s lawyer, James Trusty, argued that the special appointment of the director general would not significantly impede criminal investigations into potential mishandling of classified documents, obstruction and destruction of government property. During the “carte blanche” period in August, Trusty said. Agents mistakenly took personal items including golf shirts and photos of singer Celine Dion when they searched Trump’s residence and private club on the 8th.
But that argument didn’t appear to win over the judge, who repeatedly said Trump’s team had failed to demonstrate his need to return the items to him or that the search was out of line. Chief Justice William H. Pryor Jr. expressed concern about the precedent the case could create, allowing the targets of the search warrants to enter the courtroom and calling for a special supervisor to potentially interfere with the executive branch’s investigation before issuing the indictment.
A judge asked Trusty directly whether any subject of a federal search should be allowed to request a special supervisor. Trusty responded that the search was unique, calling Trump a “political opponent” of the current president.
Pryor also appeared to criticize Trump’s team for asking for a special host without proving the search was illegal.
“If you can’t be sure it’s illegal,” he said, “what are we doing here?”
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The special principal case originated in the Florida court of U.S. Judge Aileen M. Cannon, In September, stood with Trump by appointing a special director and barring the Justice Department from using seized material, including 103 documents marked classified, until the external inspection was complete. She ordered the special director to determine whether any documents should be kept secret from criminal investigators because Trump could legally claim certain privileges over them.
Pryor and Judges Andrew L. Brasher and Britt C. Grant heard an appeal of Cannon’s decision Tuesday. Former Alabama Attorney General Pryor was nominated by President George W. Bush. Brasher and Grant are Trump’s nominees and were on the three-judge panel that ruled against Trump earlier this fall on limited aspects of the special master’s appointment.
Josh, who defended the Justice Department on Tuesday, is a former clerk to Supreme Court Justice Antonin Scalia, a conservative who now works in the attorney general’s office. It is the first time the Justice Department has used lawyers from the attorney general’s office in a special proceeding, suggesting the government views the appeal as an important case that could go to the Supreme Court.
Trump defense attorney Chris Kise, who previously represented Trump in the special proceedings, did not attend the hearing.
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While the justices seemed more receptive to the DOJ’s arguments than the Trusty’s, they also openly debated whether they had the proper jurisdiction to overturn the lower court’s entire decision and fire the special director—asking Josh about their role in this case question of authority.
But while Trump’s lawyers have raised jurisdictional issues in previous filings on the special director, Tosti didn’t focus on the matter during Tuesday’s debate.
The judges criticized Trump’s team for appearing to be making different arguments in different venues. For example, in a recent appeals court filing, Trump’s team argued that under the Presidential Records Act, the former president had the right to treat presidential records as personal records — allowing him to write a statement on March 17. Legal possession of former White House records. a-lago.
Nor did Trusty delve into that argument on Tuesday. But he did introduce a new one, saying the warrant used to search Mar-a-Lago was too broad a “general warrant.” Josh disputed that characterization and said the court-approved search warrant was material-specific, allowing only specific parts of Mar-a-Lago to be searched.
“It seems like a new argument,” Pryor said after hearing the trust. “That’s really a bone of contention.”
On Tuesday, Trump’s lawyers also asked Cannon to release an unredacted affidavit that investigators had used to convince a judge to issue an arrest warrant. An edited version was released, and Trump’s lawyers argued that seeing the full version would help them understand how investigators justified such an “impermissibly broad search.”
The Justice Department earlier appealed parts of the special master’s decision, allowing the government to immediately resume using classified documents in criminal investigations. The latest appeal asks the court to overturn the appointment of the special director, which would end the review process and give prosecutors access to 13,000 documents that have not been marked as classified.
Raymond J. Dearie, the former chief federal judge in New York who was tasked with putting together the documents, is expected to complete the review next month. He expressed doubts about Trump’s claim that the seized material was personally or privileged, but has not said whether anyone should be considered privileged and protected from criminal investigation.
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The two sides have been discussing which material should be kept secret from investigators, but remain at odds over the fate of the 930 documents, Trusty said Tuesday. Any proposal to block or unblock files must be approved by Cannon, unless the specific master appointment is overridden.
Trusty disputed the Justice Department’s claim that the special master review is slowing down the criminal investigation, noting that Attorney General Merrick Garland’s decision on Friday to appoint a special counsel to oversee the investigation suggests it won’t end immediately.
Joshi disagreed and said he expected opposition to Dearie’s decision, which could lead to appeals and months of delays.
“Delay is fatal to upholding the law,” Joshi said. “That absolutely applies here.”