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Attempts by Donald Trump to delay the criminal investigation into his unlawful retention of government secrets have been largely thwarted after the Department of Justice regained access to about 100 documents with classified markings that the FBI seized from the former US president’s Mar-a-Lago resort in Florida.
The US appeals court for the 11th circuit this week set aside key parts of an order by a federal judge that barred the department from using the documents in its investigation, and additionally ruled that Trump’s lawyers need not review the documents over potential privilege concerns.
The 29-page decision amounted to a sharp rebuke of the rulings by US district court judge Aileen Cannon, who is overseeing the case in Florida, but it also brought an end to Trump’s attempt to slow down the investigation that his advisers feared was moving perilously fast.
The justice department, according to the search warrant affidavit, is investigating potential violations of at least three criminal statutes, including the Espionage Act concerning national defense information, obstruction of justice and the removal of government documents more generally.
Being allowed to examine the roughly 100 documents marked classified means justice department investigators can now resume the investigation into the most serious lines of inquiry – the willful retention of national defense information and obstruction – with the primary evidence itself.
The fact that the appeals court also ruled that Trump’s lawyers – as well as the special master recently appointed to review the seized materials for potential privilege protections – do not need to review the 100 documents closes off additional opportunities to delay the process further.
Trump’s goal in requesting a special master was multi-pronged from the start, according to sources familiar with the matter, and the principal – though publicly unstated – aim was to apply the brakes on the criminal investigation, after the FBI search of Mar-a-Lago took Trump’s lawyers by surprise.
A second major aim, the sources said, was to use the special master motion as a vehicle to get more insight into what documents the FBI retrieved from the property because they were initially in the dark about the extent of Trump’s, as well as their own, potential exposure.
Before the appeals court ruling, Trump’s legal team considered that the special master, senior US district court judge Raymond Dearie, might need time to evaluate whether a president, current or former, could use executive privilege to block the department from seeing executive branch materials.
The former president’s lawyers also suggested in court filings that there may be additional time-consuming deliberations about privilege if Trump had scribbled handwritten notes about his deliberative thinking with advisors and lawyers on otherwise classified or non-privileged documents.
But although Trump could still drag out the special master process – and so the third line of inquiry concerning the general removal of government records – over the 11,000 other documents seized by the FBI, the anticipated delays over classified documents are no longer at issue.
Trump effectively secured a two-and-a-half week pause in the criminal investigation from the time that Cannon enjoined the department on Labor Day to the appeals court ruling on Wednesday – a delay that former US attorneys said would not have materially affected the case.
In criminal investigations that rely on witness testimony, they said, extended delays might become problematic should the department be unable to make headway for more than a couple of months since memories fade and witnesses might start to struggle to recall specific details.
The justice department being barred from using the 100 documents marked classified, the most important evidence of potential violations of the Espionage Act and obstruction, for around three weeks would probably represent little more than an inconvenience, the former US attorneys said.
Still, the temporary delay showed the Trump legal team’s ambition and ability to accrue small procedural wins that they hope can cumulatively become significant. Without the defeat before the 11th circuit, Trump might have expected to stymie the criminal investigation into December and beyond.