In a unanimous decision on Thursday, the Atlanta-based 11th Circuit US Court of Appeals ruled in favour of the Justice Department in its challenge to District Judge Aileen Cannon’s September decision to name a “special master” to review the recordsto decide if some should be kept from investigators.
The three-judge panel said Cannon, a Florida-based judge appointed by Trump, lacked the authority to grant the former president’s request for a special master, made in a lawsuit he filed in August, two weeks after FBI agents carried out a court-approved search at his Mar-a-Lago estate in Palm Beach.
It also overturned Cannon’s decision to bar investigators from accessing most of the records pending the review and threw out Trump’s suit.
Trump faces a federal criminal investigation into his retention of sensitive government records after leaving office in January 2021, including whether he violated the 1917 Espionage Act, which makes it a crime to release information harmful to national security.
Investigators also are looking into potential unlawful obstruction of the probe.
The 11th Circuit said that while a search warrant for a former president’s property is “extraordinary”, it did not give “the judiciary license to interfere in an ongoing investigation”.
The court also said Trump did not prove there was a “callous disregard” for his constitutional rights in the search of his property, one of the few reasons a court can intervene in an ongoing investigation.
“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,” the panel wrote.
The 11th Circuit panel consisted of Judge William Pryor, appointed by Republican former President George W Bush, as well as two of Trump’s own appointees, Judges Andrew Brasher and Britt Grant.
Trump is likely to appeal the 11th Circuit’s decision to the conservative-majority US Supreme Court. The 11th Circuit said its order will not take effect for seven days, during which time the former president could seek to challenge it.
A Trump spokesperson called the 11th Circuit’s decision “purely procedural and based only on jurisdiction” and said it did not address the merits of the case.
“President Donald J Trump will continue to fight against the weaponized Department of ‘Justice’, while standing for America and Americans,” the spokesperson added.
A Justice Department spokesperson declined to comment.
The special master litigation has played out alongside an ongoing investigation examining the potential criminal mishandling of national defence information as well as efforts to possibly obstruct the documents probe.
Attorney General Merrick Garland last month appointed Jack Smith, a veteran public corruption prosecutor, to serve as special counsel overseeing that investigation.
Garland did so in an effort to fend off allegations of a politicised investigation after Trump announced he would run for president in 2024.
It remains unclear how much longer the investigation will last or who, if anyone, might be charged. But the probe has shown signs of intensifying, with investigators questioning multiple Trump associates about the documents and granting one key ally immunity to ensure his testimony before a federal grand jury.
The 11th Circuit’s decision is likely to speed the investigation along by cutting short the outside review of the records.
Smith is also overseeing an investigation into whether Trump or his allies unlawfully interfered with the transfer of power following the presidential election in 2020.
Trump’s involvement in that attack and the events leading up to it are part of the continuing investigation.