Mar-a-Lago Search Takes Disappointing Turn After Court Rulings

Civil Rights Policy Brief #195 | By: Rodney A. Maggay | September 29, 2022

Header photo taken from: Saul Loeb / AFP via Getty Images




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In this photo illustration, pages are viewed from the government’s released version of the F.B.I. search warrant affidavit for former President Donald Trump’s Mar-a-Lago estate late last month in California.

Photo taken from: Mario Tama / Getty Images

Policy Summary

In a September 16, 2022 entry on this news site, we recounted the facts of the classified documents saga that culminated in the Federal Bureau of Investigation’s (FBI) search of former President Donald J. Trump’s office at his home in Mar – a – Lago, Florida.

Very briefly, the National Archives and Records Administration (NARA) were trying to retrieve classified documents from President Trump’s home. These were eventually revealed to be documents containing sensitive nuclear weapons information. Some documents were retrieved. However, a dispute arose as to whether the documents in question could be used by the government in its criminal investigation. President Trump claimed the documents were shielded from use because of a legal privilege. 

President Trump claimed executive privilege over the documents and also the attorney – client privilege. Judge Aileen Cannon ruled in favor of the former President and in a legally unprecedented move appointed a Special Master to review the seized documents to determine if any of the documents were covered by a legal privilege. Additionally, Judge Cannon ordered that the documents could not be used by the Office of the Director of National Intelligence and the FBI in their criminal investigation into the handling and storage of the documents. The DOJ disagreed with the rulings and appealed Judge Cannon’s order to the United States Court of Appeals for the Eleventh Circuit.

On September 21, 2022 a three – judge panel of the appeals court issued its opinion. In its ruling the court analyzed the case in terms of whether Judge Cannon’s ruling should be stayed. The appeals court unanimously granted the stay. The ruling now permits the DOJ access to the seized materials to continue their criminal investigation and no longer requires the Special Master to review the documents marked classified. LEARN MORE

Policy Analysis

The ruling handed down from the United States Court of Appeals for the Eleventh Circuit meticulously took apart the arguments President Trump’s lawyers had made to Judge Cannon and was definitely a win for the Department of Justice.

While the ruling was not a ruling on the core issues raised in the case the court did find a way to address the substantive issues in the context of its analysis of a stay of Judge Cannon’s ruling. As to the privilege issues, the appeals court first analyzed whether the plaintiff (Mr. Trump) had any individual interest in the documents. The individual interest is important because it determines which party has a stake in the proceedings. The documents at issue belong to the United States and not President Trump in a personal capacity. 

The documents are significant because the interest lies in safeguarding the nation and not because of any individual interest centered around President Trump’s personal affairs as a private citizen. This is key because without that individual interest than it would be incredibly difficult, if not impossible, for Trump to claim a privilege over the documents and have them shielded from review. 

Mr. Trump even made the argument that the documents should be shielded because it contained his “medical records, correspondence related to taxes and accounting information.” While this may apply to some documents if it contained that, it certainly does not apply to documents relating to strategic nuclear weapons information. 

The court cleverly undercuts President Trump’s privilege claim by showing that he has no individual interest in the documents. With no individual interest, than a privilege claim goes out the window. And the court goes further by saying that if the documents are released the injury will not be one the former President personally suffers but will instead be a harm to the people of the U.S. and her national security interests. This key distinction illustrates that this is a matter of public concern and not a matter that relates to the activities of only one person.

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The Department of Justice: “The application of the injunction to classified records would thus frustrate the government’s ability to conduct an effective national security risk assessment and classification review and could preclude the government from taking necessary remedial steps in light of that review – risking irreparable harm to our national security and intelligence interests.”

Photo taken from: Kevin Dietsch / Getty Images

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Lastly, the appeals court addressed Judge Cannon’s ruling barring the Office of the Director of National Intelligence from reviewing the seized materials for criminal investigative purposes. This ruling was highly criticized and the appeals court agreed here. The court reasoned that the U.S. faced likely harm if the intelligence office could not review the materials. The intelligence office could not be barred from reviewing the classified documents because it needed to determine the identity of anyone who may have accessed the classified documents, whether any particular materials were compromised and whether any documents were unaccounted for. 

These documents are so sensitive that having a Special Master review them would create a danger of exposure if the appointed Master and his team reviewed them. The appeals court recognized this likely harm and correctly concluded that the better and more prudent course would be to have the intelligence office use and review the seized documents for possible unauthorized access and exposure. And, possible violations of federal law under the Espionage Act.

The court of appeals delivered the correct ruling here by considering the national security interests of the United States. Now, it remains to be seen whether President Trump will make an appeal to the United States Supreme Court which is a distinct possibility. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources​

Click or tap on resource URL to visit links where available 

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Lawfare – in depth analysis and criticisms of Judge Cannon’s September 5, 2022 ruling.

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Washington Post Special Report – exclusive report on search for classified nuclear materials at Mar – a – Lago.

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