Judges sound skeptical about court-imposed oversight on DOJ probe
A federal appeals court panel sounded highly skeptical Tuesday about former President Donald Trump’s effort to rein in the Justice Department’s investigation into a trove of government documents, including sensitive national security records, at his Mar-a-Lago estate.
The afternoon showdown at the 11th Circuit Court of Appeals in Atlanta was the first courtroom encounter between Trump’s team and federal prosecutors since Attorney General Merrick Garland tapped longtime DOJ public corruption prosecutor Jack Smith last week to serve as special counsel on Trump-related criminal investigations.
All three of the judges on the appeals panel — including two appointed by Trump himself — seemed inclined to conclude that U.S. District Court Judge Aileen Cannon erred when she granted Trump’s request for an independent review to assess Trump’s claims that some of the documents are legally protected and when she ordered that the records be off limits to investigators until those claims are litigated.
From the outset of the 35-minute session, the appeals judges aggressively challenged Trump’s legal position, suggesting that he was getting accommodations that the courts almost never grant to a criminal suspect before charges are filed.
“Has there ever been an exercise of this kind of jurisdiction, where there’s no showing that the seizure itself was unlawful?” Chief Judge William Pryor Jr., an appointee of President George W. Bush, asked.
Trump’s attorneys could not identify an example.
Judge Britt Grant, a Trump appointee, later chimed in to note that Trump “hasn’t really made much of an effort to show specific need.”
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While Smith is now overseeing the team investigating the presence of various government records at Mar-a-Lago and possible obstruction of justice in the probe, the longtime prosecutor was not on hand for Tuesday’s arguments. He had a biking accident recently in the Netherlands, where he has been prosecuting war crimes cases from Kosovo in the Hague, officials said. Due to the mishap, Smith required surgery on his knee. He’s taking on his new assignment remotely for now and is expected to return to the U.S. soon, officials said.
The Justice Department submitted to the 11th Circuit an unusual filing Monday on behalf of Smith, notifying the court of his new role and advising that he “approves all of the arguments that have been presented in the briefs and will be discussed at the oral argument.”
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NEW: An appeals court panel left little mystery today: it’s highly likely to throw out Judge Aileen Cannon’s order establishing a special master to review documents seized from Trump’s Mar-a-Lago estate.
w/ @joshgerstein https://t.co/udMUwvOWGb
— Kyle Cheney (@kyledcheney) November 22, 2022
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