The Department of Justice’s appeal to the riders of the United States Court of Appeals for the 11th Circuit ensures that the case against President Trump will now transpire at the appellate level, not just before the increasingly scrutinized bench of a district court judge, Aileen Cannon. 

The new phase in the case against Mr. Trump began in a weekend filing in which the DOJ asked the riders of the 11th Circuit to stay Judge Cannon’s decision that the government be barred from analyzing approximately 100 documents pending the review of the freshly appointed special master, Raymond Dearie. 

The DOJ hopes its luck will change in front of a new court, as Judge Cannon looked favorably on both Mr. Trump’s request for a special master and his urging her to halt the government’s review of the papers seized at Mar-a-Lago. By granting those requests, Judge Cannon stopped the investigation in its tracks. 

The DOJ called Judge Cannon’s decision “an unprecedented order.” It did not request reversal of the special master ruling, but instead focused on the ban “restricting the government’s review and use of records bearing classification markings.”

The government argues that attorney-client privilege, one of the reasons for the appointment of the special master, is not relevant to those classified documents, “which belong to the government and were seized in a court-authorized search.”  

The DOJ rejected the notion that “a former President could successfully invoke executive privilege to prevent the Executive Branch from reviewing its own records.” It went on to argue that “the criminal investigation,” which is now halted, “is itself essential to the government’s effort to identify and mitigate potential national-security risks.” 

At the core of the DOJ’s case is that the Presidential Records Act, passed in 1978, gives the government “complete ownership, possession, and control of Presidential records,” negating Mr. Trump’s arguments that the one-time president retains some purchase on the documents discovered at his compound. 

Of the 11,000 documents recovered from Mar-a-Lago, the roughly 100 that bore classification markings, including “markings indicating the highest levels of classification,” now constitute the core of the DOJ’s case against Mr. Trump. 

In some instances, the government notes, “even FBI counterintelligence personnel required additional clearances to review the seized document.” In addition to being highly classified, the DOJ argues that the “records are not subject to any plausible claim for return or assertion of privilege.”

The DOJ argues that Mr. Trump does not even have standing to block the criminal review of this trove, as it is “government property, over which the Executive Branch has exclusive control, and in which Plaintiff has no property interest.”

Quoting the Supreme Court’s holding in Nixon v. Administrator of General Services, the DOJ notes that executive privilege, involved by Mr. Trump in regards to the documents, exists “not for the benefit of the President as an individual, but for the benefit of the Republic.” 

That privilege, the government argues, is meant to preserve the separation of powers, and would offer “no basis” for withholding the documents “from the Executive Branch itself.” That privilege is “qualified, not absolute” and should give way in circumstances such as these, where the records “are not merely relevant evidence; they are the very objects of the offense.”