The Justice Department filed a notice of appeal on Thursday over a judge's controversial order granting former President Donald Trump's request to appoint a third party to review thousands of documents recovered from his Florida estate ahead of a Friday deadline to work with the former president's legal team on the motion.
With the decision - which has garnered much speculation in the three days since U.S. District Court Judge Aileen Cannon sided with Trump on his request for a special master - the case now goes before the Trump-appointee dominated 11th U.S. Circuit Court of Appeals in what some have said is a gamble for the Justice Department. But the details of what's included in the appeal itself remain unclear.
After Cannon agreed to appoint an individual to review the documents recovered at Mar-a-Lago in the Aug. 8 search, while also temporarily restricting the Justice Department from continuing parts of its investigation, the path forward for the agency remained unclear. Granting a special master posed delays for the investigation, but so did appealing the ruling. Still, some have argued that choosing not to appeal, or losing an appeal, could set a dangerous precedent for the rights - and powers - of presidents no longer in office.
Cannon's decision, released Monday, came after the Trump-appointed judge expressed "preliminary intent" to grant the former president's request even before hearing from the Justice Department in an unusual move that added to the already non-traditional delayed request from Trump's team to appoint a special master, which some have speculated is his latest attempt to slow or halt an investigation into his conduct as the FBI has recovered thousands of documents - some of which had classified markings - at his Mar-a-Lago home.
Cannon explained that "these unprecedented circumstances call for a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards."
The judge ordered the Justice Department and Trump's legal team to confer and submit a joint filing that includes a list of proposed candidates for special master and a proposal outlining the individual's duties and limitations by Friday.
The Justice Department has argued that Trump's request for a special master is "unnecessary," saying that it "would significantly harm important government interests, including national security interests." Cannon seemed to agree with the national security concerns, allowing the Office of the Director of National Intelligence to continue parts of its investigation related to "intelligence classifications and national security assessments."
Meanwhile, Trump's legal team has criticized the Justice Department's handling of the documents, arguing that "left unchecked, the DOJ will impugn, leak, and publicize selective aspects of their investigation," suggesting that without a special master, it would have to "somehow trust the self-restraint of currently unchecked investigators." The team has also argued that the FBI search of Trump's Mar-a-Lago home violated the former president's Fourth Amendment rights.
Cannon disagreed with Trump's legal team on Monday, writing that "the Court agrees with the Government that, at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff's constitutional rights."
But the judge also argued that Trump has an individual interest in the seized property and that the retention of the seized materials could put Trump "at risk of suffering injury," writing that "as a function of Plaintiff's former position as President of the United States, the stigma associated with the subject seizure is in a league of its own."
"A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude," Cannon wrote.
That claim - that the former president's situation is in a "league of its own" - has fostered intense criticism from legal experts, who have argued that the judge has created an entirely new legal standard with the argument.
Cannon also concluded on Monday that she is "not convinced" by the government's rejection of Trump's executive privilege claims, over which the request for the special master has hinged, largely deferring to the special master on the issue of executive privilege, which some experts have likewise pushed back on.
"I think that this order may be problematic, in that it allows the special master to review for executive privilege without really defining what that means," PBS quoted former U.S. Attorney Barbara McQuade as saying. "A special master doesn't make legal decisions. A special master does sorting work."
Others have criticized Cannon's enjoinment of the Justice Department's review of the documents, while allowing another government office to continue on national security concerns - arguing that the judge should not separate the two elements of the investigation.
Also on Thursday, the Justice Department asked Cannon to stay her ruling blocking the Justice Department from continuing parts of its investigation, arguing that its criminal investigation and the assessment of national security risks are "inextricably linked."
Copyright 2022 U.S. News & World Report