September 24, 2022

A three-judge panel of the 11th Circuit Court of Appeals overturned a Florida federal judge’s order that effectively barred the Justice Department from using classified documents found at former President Donald Trump’s Palm Beach home to further the criminal investigation against him and his associates.

In an opinion issued late Wednesday, District Judges Robin Rosenbaum, Britt Grant and Andrew Brasher said they agreed with the government’s argument that District Judge Aileen Cannon “arguably erred in the exercise of … jurisdiction to order the United States to use classified records in its criminal investigation and require the United States to turn over classified classified documents to a special master for review”.

“For our part, we cannot discern why the prosecutor would have an individual interest or need in any of the hundreds of classified documents,” they said.

The judges added that Trump “has not even attempted to show that he has a need to know the information contained in the classified documents.”

“Nor did he establish that the current administration waived that request for these documents. And even if it was, that in itself would not explain why the prosecutor has an individual interest in the secret documents”.

Mr Trump has repeatedly claimed to have declassified some or all of the documents he collected at his Florida home during his presidency. But his lawyers did not go so far as to repeat those claims, only saying the documents had classification markings.

The panel found that Trump’s lawyers had provided “no evidence that any of these records were declassified” despite the former president’s suggestions that he may have done so, and resisted making such an argument at a hearing before the special master in charge of reviewing the documents, the federal New York-based Judge Raymond Dearie at a hearing in Brooklyn on Tuesday.

“In any case, for these purposes at least, the argument for declassification is a red herring because declassifying an official document would not change its content or make it personal. So, even if we were to assume that the prosecutor declassified some or all of the documents, that would not explain why he has a personal interest in them,” they said.

The ruling by three 11th Circuit judges — two of whom were appointed to the bench by Mr. Trump — means the Justice Department will be able to use 100 classified documents seized by the FBI during a search of his home in the 8th Criminal Investigation into whether the twice-impeached former president violated laws prohibiting the mishandling of national defense information and obstruction of justice.

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