The US Court of Appeals for the 11th Circuit has authorized the Justice Department to resume its investigation of classified documents found at Donald Trump’s Mar-a-Lago resort in Florida.

In a strongly-worded 29-page decision, the court set aside the order by Florida federal judge Aileen Cannon that blocked the Department from reviewing the files.

The court — Trump appointees Judges Britt Grant and Andrew Brasher and Obama appointee Judge Robin Rosenbaum — also agreed with the Justice Department that Trump’s lawyers and a “special master” mandated by Judge Cannon need not look at the documents.

[The Justice Department] argues that the district court likely erred in exercising its jurisdiction to enjoin the United States’ use of the classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review.

We agree.

The special master may still review most of the more than 11,000 files seized from Mar-a-Lago, but prosecutors have unrestricted access to the hundreds of classified documents.

The court took apart Trump’s argument that he had declassified the material:

He suggests that he may have declassified these documents when he was president. But the record contains no evidence that any of these records were declassified….

In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.

Trump told his friend Sean Hannity on Fox TV on Wednesday, “You can declassify just by saying ‘It’s declassified,’ even by thinking about it.”

ORIGINAL ENTRY: Donald Trump has succeeded in dragging out justice and accountability over his removal of classified documents from the White House.

Federal District Judge Aileen Cannon, a Trump appointee, accepted the demand of Trump’s lawyers for a “special master” to review the documents, including those retrieved by the FBI in a search of Trump’s Mar-a-Lago resort in Florida on August 8.

More than 320 classified documents were found at Mar-a-Lago, including more than 100 from the execution of the search warrant. The FBI also found 48 empty folders which were marked as containing classified information, and another 40 empty folders with sensitive documents that the user should “return to staff secretary/military aide”.

See also FBI Inventory Indicates Classified Documents Still Missing at Trump’s Mar-a-Lago Resort

EA on Times Radio: Trump’s Mounting Legal Troubles

Cannon temporarily barred the Justice Department from using the seized materials for any “investigative purpose” connected to Trump until the work of the special master is completed. That holds up the examination of federal prosecutors over Trump’s possible violation of the Presidential Records Act, obstruction of a Government investigation, and breaking of the Espionage Act — all felony offenses./p>

Cannon’s order does not suspend a separate review of the documents by the Office of the Director of National Intelligence, determining the risk to national security from Trump’s removal of the documents.

Read the Ruling

A Justice Department spokesman said, “The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation.”

An appeal would be heard by a three-judge panel from the US Court of Appeals for the 11th Circuit in Atlanta, Georgia. Of the 11 active judges, six were appointed by Trump.

Protecting Trump’s “Privilege”

Cannon not only permitted the special master to review documents for attorney-client privilege, but also reopened the issue of executive privilege.

In May, seeking to recover all the documents, the National Archives — in consultation with the Biden Administration and the Justice Department — wrote about Trump’s claim of executive privilege, “The question in this case is not a close one.”

Justice Department lawyeers noted that appointment of special master to conduct an executive privilege review is “unprecedented” and legally baseless as Trump is no longer in office.

But Cannon put Trump in a special category: “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.”

And in a curious inversion — given the risk that the documents at Mar-a-Lago could have been viewed and/or stolen by anyone at the resort — she declared that faced “unquantifiable potential harm by way of improper disclosure of sensitive information to the public”.

Even Trump’s former Attorney General William Barr — who shielded Trump from accountability for almost two years — rejected the special master as a “waste of time”: “Even if [the documents] are subject to executive privilege, they still belong to the government. And any other documents that were seized….Those were seize-able under the warrant.”

Neal Katyal, a former Acting Solicitor General, dissected Cannon’s ruling and said the Justice Department should appeal: “Frankly, any of my first year law students would have written a better opinion.”