New Special Counsel Asks Court to Stop Independent Review of Documents Seized From Mar-a-Lago

Prosecutor Jack Smith of the U.S. in a courtroom at The Hague on Nov. 10, 2020. Peter Dejong/ANP/AFP via Getty Images

The newly appointed special counsel tasked with investigating former President Donald Trump’s handling of allegedly classified documents asked a U.S. judge on Dec. 2 to halt the independent review of documents the FBI seized from former Trump’s home in Florida.

Special counsel Jack Smith told U.S. District Judge Aileen Cannon that the work of U.S. District Judge Raymond Dearie should be halted in light of an appeals court ruling on Dec. 1 that Cannon improperly appointed Dearie as special master, or independent arbiter.

A panel of the U.S. Court of Appeals for the 11th Circuit handed down the ruling, which revoked Cannon’s order appointing Dearie.

But the court also withheld the order for seven days to give Trump time to appeal to the full appeals court or the U.S. Supreme Court.

In the interim, Cannon, a Trump appointee, should stop Dearie’s work herself, Smith said.

His request came in the form of asking for a one-week extension of time for upcoming deadlines that had been set by Dearie.

“Pending the issuance of the Eleventh Circuit’s mandate, the parties and Special Master have deadlines and work that will be rendered moot when the mandate issues,” said Smith, who was appointed by Attorney General Merrick Garland.

Halting the review “will conserve the resources of this Court, the Special Master, and the parties, consistent with Civil Rule 1, which governs this civil action,” he added.

If an appeal is lodged and is successful, “the Court, Special Master, and parties will resume work where they left off under the extended deadlines with only one week’s delay,” Smith also said.

Smith said Trump’s lawyers hadn’t said whether they supported or opposed the motion.

Trump’s Reply

In a response hours later, Trump’s lawyers said Cannon shouldn’t grant the request.

“The Eleventh Circuit shortened the time to issue the mandate, thereby decreasing the already limited time available to President Trump to pursue legal options,” said Lindsey Halligan, one of the lawyers.

“President Trump opposes modification of the current case management order at this time.”

Halligan also floated holding a status conference, or a meeting on the case between the parties, on Dec. 6 or anytime after.

If held before Cannon rules on the motion, the conference would feature government lawyers arguing to grant it while Trump’s lawyers would outline their opposition.

Former President Donald Trump announces he is running for president in the 2024 U.S. presidential election during an announcement at his Mar-a-Lago estate in Palm Beach, Fla., on Nov. 15, 2022. Jonathan Ernst/Reuters

Special Master

Cannon in September appointed Dearie, a Reagan appointee, as special master in the case.

Special masters work to resolve differences between the parties on matters including privilege.

Cannon ruled that Trump was “being deprived of potentially significant personal documents, which alone creates a real harm” and that he “faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.”

“Further, Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials in the course of a process that, thus far, has been closed off to Plaintiff and that has raised at least some concerns as to its efficacy, even if inadvertently so,” she added.

FBI agents seized more than 11,000 documents from Mar-a-Lago, Trump’s estate in Palm Beach, during an Aug. 8 raid that was approved by a U.S. magistrate judge.

According to a government inventory list, agents also took more than 1,600 newspaper and magazine articles, empty folders, articles of clothing, books, and gifts.

Government officials believe Trump violated the Espionage Act and other laws in his handling of materials, including records with classified markings. Trump has said he declassified those records and decried the raid as unjust.

Appeals Court Ruling

The appeals court panel said that Cannon lacked the jurisdiction to appoint a special master under the principle of equitable jurisdiction, or the authority to act in the interest of fairness, because an indictment hasn’t been announced and because Trump hasn’t shown that the seizure was illegal.

“The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so,” the panel said.

“Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations.”

Government lawyers had argued that the appointment was illegal. Cannon “should not have exercised jurisdiction over this case in the first place,” Sopan Joshi, one of the lawyers, said during a recent hearing.

James Trusty, a lawyer representing Trump, said that Cannon’s appointment was proper because Trump couldn’t establish the raid was unlawful without access to the documents.

“This is a judge who’s giving us an opportunity to initially create a carve-out of limited equitable jurisdiction for us to explore whether or not there’s a valid claim,” Trusty said.

The panel consisted of Circuit Judges William Pryor, a George W. Bush appointee; Britt Grant, a Trump appointee; and Andrew Basher, a Trump appointee.