D.C., September 21 (Reuters) – A federal appellate court ruled on Wednesday that the U.S. Justice Department can resume reviewing classified records that the FBI seized from former President Donald Trump’s Florida home while an appeal is pending, advancing the criminal investigation into whether the records were improperly handled or compromised.

Federal prosecutors asked the 11th U.S. Circuit Court of Appeals in Atlanta to overturn U.S. District Judge Aileen Cannon’s stay prohibiting them from using the classified documents in their investigation until an impartial arbiter, known as a special master, reviews the materials to weed any information that may be considered privileged and kept from investigators. The court granted their request.

A component of the trial court’s ruling that ordered the government to provide records with classification marks for the special master’s review would also be reversed, the appeals court indicated it would agree to. We come to the conclusion that the District Court’s limitations on the United States’ access to this specific—and possibly crucial—set of information, as well as the Court’s requirement that the United States submit the classified records to the Special Master for review, would cause the United States irreparable harm,” the three-judge panel wrote.

The Justice Department had only requested a partial stay pending appeal, and the panel was unable to rule on the case’s merits, thus the panel’s judgement is “limited in character,” it stated.

Robin Rosenbaum, a pick of the Democratic former President Barack Obama, and Britt Grant and Andrew Brasher, both picks of Trump, were the three judges that made the choice.

Trump’s attorneys could petition the U.S. Supreme Court, which has a 6-3 conservative majority and three justices he personally chose, to get involved in the case.

Trump’s attorneys pleaded with the court in documents filed on Tuesday to maintain the stay and grant them access to study all of the seized documents, including those marked secret, under the direction of US Judge Raymond Dearie, the special master.

An immediate reaction from a Justice Department representative was unavailable. Trump’s legal counsel could not be reached for comment right away.

Trump reiterated his unsupported claim that he declassified the records in an interview with Fox News on Wednesday night, asserting that he has the authority to do so “simply by thinking about it.”

On August 8, the FBI searched Trump’s residence at the Mar-a-Lago resort in Palm Beach with a court order, and more than 11,000 papers, including around 100 secret documents, were taken.

The search was part of a federal inquiry into whether Trump attempted to impede the investigation and if he unlawfully removed records from the White House when he left office in January 2021 following his unsuccessful fight for reelection in 2020.
Despite the Justice Department’s concerns about appointing a special master, Cannon—herself a Trump appointee—appointed Dearie to serve as the case’s special master at Trump’s request.

Dearie was entrusted by Cannon with going through all of the documents, including the secret ones, to identify anything that may be covered by the attorney-client privilege or executive privilege, which is a legal theory that prevents some White House conversations from being made public.

However, in none of their court documents have President Donald Trump’s attorneys made such assertions, and on Tuesday, when Dearie pressed them for evidence that Trump had declassified any documents, they refused.
The appeals court emphasised that its decision was limited in scope, but it yet seemed to strongly criticise Cannon’s decision from top to bottom and many of Trump’s legal justifications.

In their ruling, the justices stated that Trump “has not even attempted to prove that he has a need to know the material contained in the confidential documents.” “Neither has he shown that the present government has waived that necessity for these records,” the author writes.

Additionally, the Justice Department previously expressed strong disagreements with Cannon’s request that Dearie examine the records that had been seized for any files that might be protected by executive privilege, pointing out that Trump is a former President Donald Trump’s and that the records do not belong to him.

The Justice Department disagreed with that section of Cannon’s ruling, but it did not challenge it. It is unclear if prosecutors may separately attempt to challenge other portions of Cannon’s decision regarding the appointment of the special master.

The appeals court stated that it only decides on the “standard equitable issues,” such as whether the United States has demonstrated a reasonable possibility of winning on the merits, the harm a stay could do to each party, and where the public interest rests.