Posted originally on CTH on December 1, 2022 | Sundance
The 11th Circuit Court of Appeals having previously ruled the special master cannot review classified documents, also ruled today against the special master having any involvement in the filtering of seized documents from Mar-a-Lago. [Ruling Here]
Previously, the lower court appointed a special master to review the seized documents and ensure no privileged material was exploited by the DOJ. However, the appellate court determined the DOJ can independently define a national security interest and classify documents with no legal basis for challenge, therefore the special master cannot filter classified documents.
Today the appeals court essentially said if the search warrant was legally predicated and legally valid, and if the search warrant was used legally, then all the seized documents are valid for the investigative purposes of the DOJ – regardless of their content. The only way to fight the authority of the DOJ seizure is to challenge the legality of the search warrant. However, here’s where things get weird.
President Trump’s lawyers have been: (1) blocked from receiving a non-redacted search warrant; (2) denied access to the underlying probable cause affidavit used to predicate the search warrant, and (3) denied the full contents of the documents that were seized as part of the warrant (they are not allowed to see). Yet somewhere in this convoluted mess, we are supposed to believe a 4th amendment violation doesn’t exist.
Florida – […] The ruling by the three-judge panel, including two Trump appointees, goes into effect in seven days, absent intervention by the full circuit court or the Supreme Court.
“The law is clear,” the judges found. “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 order effectively eliminates what federal authorities had described as a major obstacle in their ongoing criminal investigation into whether Trump illegally retained highly classified records after leaving the presidency and obstructed efforts by the government to recover them. He denies wrongdoing.
The appellate judges had signaled in a hearing last week that they were likely to order an end to the special master’s review. They repeatedly expressed concern that the appointment of third-party judge Raymond Dearie by U.S. District Judge Aileen Cannon in Florida lacked any clear precedent. (read more)
As it stands right now, President Trump has not been permitted to see the documents that support the search warrant, nor the scope of the search warrant as issued (the DOJ is claiming national security interests). The appeals court today is saying as long as the hidden search warrant is valid, all seized documents are valid.
How is President Trump supposed to challenge the legality of the seizure if the DOJ isn’t required to produce the legal basis for the warrant?
The legal challenge against the underlying warrant is the key issue.
In a recent court filing [Document Here], President Trump through his legal counsel has requested Judge Cannon to unredact and unseal the search warrant affidavit used as the predicate for the FBI raid on Mar-a-Lago. Apparently, the DOJ have yet to provide President Trump with the constitutionally required predicate documents to support their search.
While asking the court to provide the affidavit to the defense team, the lawyers for President Trump are noting the fourth amendment protects everyone against warrantless searches and seizures, and that same protection also guarantees the target the right to receive and review the claimed justification for the warrant.
The unredacted affidavit is obligated to be supplied so that it can be determined if the search warrant was legally valid and predicated. General search warrants are not legally permitted. The warrant must specify what is being searched and why. The DOJ is fighting against this affidavit release. The Trump lawyers are asking the judge to make a decision.