Trump loss ignites next steps for DOJ in Mar-a-Lago investigation

A federal appeals court decision has paved the way for the Department of Justice (DOJ) to use the remaining cache of unclassified records it seized at former President Trump’s home, halting the special master process and lifting an important roadblock into its investigation of the potential mishandling of records at Mar-a-Lago.

The 11th Circuit Court of Appeals court issued a strong repudiation this week of arguments from Trump and the lower court judge who awarded his request for a third-party review of the evidence seized from his home.

It also frees up the Department of Justice to use 22,000 pages of seized government records — an important green light that will allow investigators to review every piece of evidence in hopes of building an airtight case.

“The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so,” the judges wrote.

It’s the latest sign that Trump’s initial success in the case is diminishing, with the three-judge panel for the court rejecting a number of arguments his legal team has offered since the August 9 search and determining even the unclassified records may be used in the department’s investigation.

The Department of Justice has made clear the classified records found at Mar-a-Lago represent the bulk of its potential case, which could include charges under the Espionage Act.  

But the thousands of records found at Mar-a-Lago that do not bear classification markings could also be important to the case. 

“One of the biggest challenges for the prosecutors in this case was always going to be establishing that Trump had personal knowledge of the fact that the classified documents were at Mar-a-Lago, and that he was personally involved in not returning them, which will go to obstruction,” Brian Greer, a former CIA attorney, told The Hill.  

“The fact that these classified documents were intermingled with unclassified documents that he was accessing, or would have been accessing, is potentially very valuable evidence demonstrating Trump’s personal knowledge,” he added.  

Previous court filings indicate that Trump’s passports were found among the documents and that the search found government records not just in a storage room, but in Trump’s personal office.  

Thursday’s ruling notes that while other personal effects listed by Trump’s team, like golf shirts and pictures of Celine Dion, may be his property, “we do not see the need for their immediate return after seizure under a presumptively lawful search warrant.” 

Even if the items are not central for building the government’s case, they could be useful in responding to possible Trump defenses. 

Greer said that could be key, as the investigation differs from other cases dealing with mishandling of national security information given that Trump is “a wealthy man who’s not necessarily involved in packing his boxes.” 

“If the classified documents were just in a storage room, in a box that wasn’t being accessed, that would be a harder case. But we know some of the documents were found in Trump’s personal office instead, and if DOJ can use the unclassified, intermingled records to show that Trump was accessing the classified documents, its case will be significantly stronger,” Greer said. 

The Department of Justice responded quickly to the 11th Circuit ruling, filing a motion in the Florida court where Trump’s challenge to the warrant initiated, asking for an extension of deadlines before the special master, Judge Raymond Dearie, given that Trump has a week to appeal the ruling before it takes effect on Dec. 8. 

While Trump’s legal team opposed the government’s motion, it did not indicate whether it plans to appeal the 11th Circuit ruling.  

Experts say it will take the government little time to parse the 22,000 pages but caution that the Department of Justice has just as much an institutional interest in winning the case as an investigative one. 

The 11th Circuit was for the second time highly critical of the decision by federal district court Judge Aileen Cannon’s decision to award Trump’s request for a special master, noting that keeping it in place would represent “a dramatic and unwarranted” use of the court’s authority. 

“It set a really bad precedent, Judge Cannon’s order,” said Ankush Khardori, a former DOJ trial attorney specializing in major financial fraud. 

“If they just had this out there, every defendant or prominent defendant would try to do something similar to Trump,” he added. 

Khardori agreed that the DOJ likely viewed retaining the unclassified documents as an essential step for proceeding with its investigation, but he warned it is hardly the last domino that needs to fall for bringing charges against Trump. 

Following Trump’s announcement of a new 2024 presidential bid, Attorney General Merrick Garland appointed Jack Smith as a special counsel to oversee the Mar-a-Lago case, as well as its investigation into efforts to block the transfer of power. 

Much of the decision on charges in the Mar-a-Lago case will likely center on what sort of documents Trump was storing. 

“What is in these documents? How serious was the exposure? How significant was Trump’s retention of this material? What was in the actual documents is key to understanding the seriousness of the underlying conduct,” Khardori added. 

Despite the classification markings, Khardori said it’s still unknown to the public whether Trump left office with serious national security secrets.  

Though he said it’s unlikely, Khardori said it’s possible the documents could include classified records that are meaningless in isolation, along with other presidential records Trump may view as momentos, including letters from North Korean leader Kim Jong Un.  

While the case has excited many eager to see Trump prosecuted, Khardori warned that the DOJ could still decline to bring charges. 

“If it were not really terribly dangerous, then I think Jack Smith, Merrick Garland, they’re going to have to be thinking, ‘Okay, is this the kind of case that should comprise the first ever prosecution of a former president?’’ he said. 

Greer said if the Department of Justice did decide not to bring charges, it would represent a double standard. 

“It’s difficult to see DOJ walking away from this case. I just don’t see them saying, ‘No, we don’t think this case is worth charging,’ when DOJ brings several prosecutions like this against ordinary government employees every year,” he said. 

The immediate next steps for prosecutors will likely be interviewing witnesses about the documents and gathering all possible details about the national security information Trump had on hand. 

While Trump’s status as a presidential candidate has shifted the investigation to some degree — including Smith’s appointment — Khardori said the possibility of any activity coming amid an intensifying campaign season could actually slow the DOJ’s desire to bring charges. 

“They may be saying to themselves, ‘He’s running. And he may very well be in the general election. So what we need to do is put together the strongest possible case … so that if there comes a point in time where he’s charged, that the prosecution is as successful as possible,’ rather than, ‘Let’s put it together as quickly as possible,’” Khardori said.