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Trump Squares Off With DOJ in Mar-a-Lago Special Master Appeal

(Bloomberg) -- Federal prosecutors are set to go head-to-head with Donald Trump’s lawyers in an Atlanta courtroom, arguing to free thousands of documents seized from the former president’s Mar-a-Lago estate from a review that’s kept them out of investigators’ hands for months.

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A federal appeals court this afternoon will hear the Justice Department’s appeal of a September order appointing an outside special master to consider Trump’s claims that the records are covered by legal protections. The government is also challenging an injunction that bars prosecutors and FBI agents from using contested documents in the criminal probe in the meantime.

The three-judge panel of the 11th US Circuit Court of Appeals hearing the case includes two Trump appointees -- Judges Britt Grant and Andrew Brasher -- as well as Chief Judge Bill Pryor, confirmed under former President George W. Bush. That’s no guarantee of a Trump win, as Grant and Brasher were on a panel that sided with the Justice Department the last time this fight came before the court, finding that about 100 documents with classified markings should be excluded from the special master review and the injunction.

Since that earlier order, more details have emerged about the number and substance of documents that Trump had at his Florida estate, and a new independent special counsel has been named to take over the probe.

What is the court argument about?

The Justice Department is challenging the validity of US District Judge Aileen Cannon’s decision to bring in a special master -- US District Senior Judge Raymond Dearie -- and to temporarily keep some documents out of the investigation. Trump is defending Cannon’s decision and his personal interest in the records, while also claiming the special master appointment wasn’t appealable.

While the appeal is pending, Dearie has been busy. He’s sifting through Trump’s claims that documents should be shielded from investigators because he designated government records as “personal” and that, alternatively, some materials are covered by executive privilege. The Justice Department has countered that Trump can’t back up his “personal” designations and, regardless, that’s irrelevant to the government’s authority to seize them under a court-approved warrant.

What’s the significance of the new special counsel?

Tuesday’s hearing comes less than a week after Attorney General Merrick Garland announced the appointment of an independent special counsel to oversee the records investigation as well as a probe into any crimes in connection with Trump’s efforts to undermine the 2020 election results. Special Counsel Jack Smith isn’t expected to suddenly replace Justice Department lawyers who have spent months wrangling in court over the seized documents. On Monday, the government formally notified the 11th Circuit of Smith’s appointment and said that he’d reviewed its filings in the case and “approves all of the arguments.”

How many documents are at issue?

FBI agents seized 13,000 hard copy documents and other items -- books, clothing, gifts -- from Mar-a-Lago in the Aug. 8 search. That included the roughly 100 documents with classified markings already carved out of the special master review.

The materials before Dearie can be tabulated a few ways, but the clearest measure has been page counts. A separate Justice Department filter team flagged about 520 pages that raised concerns about personal and potentially sensitive legal information; the majority of those were returned to Trump and a few dozen pages remain in dispute. In recent weeks, government attorneys and Trump’s team have been going through the remaining 21,792 scanned pages to identify areas where they disagree.

What do we know about the contents?

A sealed document related to the filter team’s work that was mistakenly put on the public docket offered an early glimpse at what the FBI seized -- from records about potential presidential clemency and immigration policy to emails about post-2020 election litigation, legal bills and invoices, and tax information. Some materials with classified markings were designated at the highest level of secrecy, according to the government. The Washington Post reported that some of the classified information included “highly sensitive intelligence regarding Iran and China.”

A recent Justice Department filing included more details about what’s still at issue -- books, magazine articles, and press clippings with annotations; thank-you notes for presidential actions; and briefing materials prepared by White House staff for Trump when he was president.

Where are the documents?

Justice Department filings indicate documents were moved to Washington and that at least some were being kept at the FBI’s local field office. Because the government won approval to use the records with classified markings, those are likely separate from where everything else is being kept.

A third-party vendor scanned digital copies so the lawyers and judges involved have access no matter their physical location. The legal fight is split between south Florida, where the case is before Cannon and where Trump and some of his lawyers are located; Brooklyn, where Dearie normally sits and has held hearings; and the Washington area, where the core Justice Department prosecutors and other Trump lawyers are based.

What happens next?

The 11th Circuit expedited the case, but hasn’t said when to expect a ruling. In the meantime, Dearie is going through a master log of disputes and weighing arguments on “global issues” in the case. His next hearing is Dec. 1.

Dearie is set to wrap up by Dec. 16 and submit recommendations to Cannon, who will make the final call about whether to permanently exclude documents from the criminal investigation. Her decision could then be appealed. Action by the 11th Circuit could halt all of that, however.

Is this going to the US Supreme Court?

Probably. When the 11th Circuit ruled against Trump on the classified materials, he asked the justices to immediately intervene, and they refused to do so. If Trump loses again before the three-judge panel, he could ask the full 11th Circuit to reconsider before trying to take it to the Supreme Court.

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