Trials & Litigation

Classified documents seized from Trump can be used now in criminal investigation, 11th Circuit rules

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Classified documents seized from Mar-a-Lago

A photo of documents from former President Donald Trump's Mar-a-Lago home in Palm Beach, Florida, submitted as evidence by the Department of Justice in federal court in Florida. Image from the Department of Justice. Adjacent photo by Jon Elswick/The Associated Press.

Updated: The U.S. Department of Justice has succeeded in obtaining a partial stay of a ruling by U.S. District Judge Aileen M. Cannon of the Southern District of Florida in litigation over documents seized from former President Donald Trump’s Mar-a-Lago residence in Palm Beach, Florida.

The 11th U.S. Circuit Court of Appeals at Atlanta ruled Wednesday that the DOJ can use seized classified documents in its criminal investigation, and that those documents don’t have to be turned over to Senior U.S. District Judge Raymond J. Dearie, the special master reviewing documents for privilege claims.

The appeals court considered four factors to determine whether the government had a right to the partial stay pending the appeal.

On the first factor, the 11th Circuit ruled that the government had established a substantial likelihood of success on the merits of its claims concerning the classified documents.

“For our part,” the appeals court said, “we cannot discern why plaintiff would have an individual interest in or need for any of the 100 documents with classification markings.”

Trump “has not even attempted to show that he has a need to know the information contained in the classified documents. Nor has he established that the current administration has waived that requirement for these documents. … Plaintiff suggests that he may have declassified these documents when he was president. But the record contains no evidence that any of these records were declassified. And before the special master, plaintiff resisted providing any evidence that he had declassified any of these documents. … In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.”

AP Raymond Dearie Related article from “Meet Raymond Dearie, the judge picked to oversee Mar-a-Lago documents review”

On the three other factors, the 11th Circuit found that:

    • The United States would suffer irreparable injury in the absence of a stay. The government has a compelling interest in protecting the secrecy of information important to national security, the appeals court said.

    • Trump hasn’t shown that he will suffer a substantial injury as a result of the limited stay. Trump doesn’t have a possessory interest in classified documents, and there is no reason to expect that the government’s use of the documents risks disclosure of privileged information, the 11th Circuit said.

    • The public interest favors a stay. “It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in ‘exceptionally grave damage to the national security,’” the appeals court said. “Ascertaining that necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised.”

The Sept. 21 per curiam opinion was written by Judges Robin S. Rosenbaum, Britt C. Grant and Andrew L. Brasher.

The Washington Post and the New York Times are among the publications that covered the decision. How Appealing links to additional coverage.

Trump said in an interview with Fox News on Wednesday that he declassified the documents upon leaving the White House, according to the the New York Times and the Washington Post.

“I declassified the documents when they left the White House,” Trump said. “There doesn’t have to be a process as I understand it. You’re the president of the United States, you can declassify … even by thinking about it.”

Trump has also said in media interviews and on social media the FBI planted items, and that the government said documents were classified that had in fact been declassified, according to Washington Post.

Cannon modified her order Thursday to comply with the 11th Circuit’s decision.

Dearie followed with an order Thursday that required Trump to back up or disavow claims about planted documents and declassification. Dearie said Trump had until Sept. 30 to submit an affidavit or a declaration listing:

    • Items in the government’s property inventory that it didn’t seize in the Aug. 8 search of Trump’s Mar-a-Lago home.

    • A list of items in the government’s inventory in which the government’s description of the contents is incorrect or in which its description of the location found is incorrect.

    • A list of seized items that were not included in the property inventory.

See also: “After Trump makes claims about planted and declassified documents, special master seeks specifics” “Will Trump be indicted in Mar-a-Lago documents case? His lawyers see possibility, object to special master request” “Who filed phony document in Trump Mar-a-Lago search case?” “Trump requests special master for review of documents seized by FBI” “DOJ files motion to unseal warrant, property receipt relating to search of Trump’s home” “Trump search-warrant affidavit, released on judge’s orders, cites sensitive documents, possible obstruction” “Meet Raymond Dearie, the judge picked to oversee Mar-a-Lago documents review” “Judge who signed Trump search warrant is targeted; critics seek ‘judgment of God’” “Could Trump be banned from office if he’s convicted of taking government documents?”

Updated Sept. 22 at 1:09 p.m. and at 3:50 p.m. to include information about U.S. District Judge Aileen M. Cannon’s modified order and Senior U.S. District Judge Raymond J. Dearie’s new order.

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