Last we checked in, which was like two days ago, the feds were on the losing end of a District Court Order which not only appointed a Special Master but also reaffirmed that the feds could not continue to use documents seized — including documents marked classified — until the Special Master had a chance to review them. Short version of the Judge’s opinion was that she wasn’t going to take DOJ’s word for anything as to the documents. See this post for detail, Mar-a-Lago Raid: Judge Rejects DOJ Request For Partial Stay, Appoints Special Master.
Sometime last night the DOJ filed an Emergency Appeal with the 11th Circuit Court of Appeals. Here are excerpts from the DOJ Motion:
The district court has entered an unprecedented order enjoining the Executive Branch’s use of its own highly classified records in a criminal investigation with direct implications for national security. In August 2022, the government obtained a warrant to search the residence of Plaintiff, former President Donald J. Trump, based on a judicial finding of probable cause to believe that the search would reveal evidence of crimes including unlawful retention of national defense information. Along with other evidence, the search recovered roughly 100 records bearing classification markings, including markings reflecting the highest levels of classification and extremely restricted distribution. Two weeks later, Plaintiff filed an action seeking the appointment of a special master to review the seized materials and an injunction barring the government from continuing to use them in the meantime. The court granted that extraordinary relief, enjoining further review or use of any seized materials “for criminal investigative purposes” pending a special-master process that will last months. A36-A37.Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process. This Court should grant that modest but critically important relief for three reasons.
I can’t check if anything else has happened or other documents filed because as of this writing the 11th Circuit PACER portal is down (presumably from volume).
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