Stop Telling Me What Great Things Merrick Garland is Doing Behind the Scenes

Washington — A federal appeals court on Wednesday granted a request from the Justice Department to allow its investigators to regain access to the roughly 100 documents bearing classification markings that were seized by the FBI during its search at former President Donald Trump's Florida residence.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit agreed to put on hold a lower court's order that kept the subset of sensitive records off-limits for the Justice Department to use for investigative purposes, pending the review of the materials by an independent arbiter known as a special master.

In its 29-page opinion, the panel said it agreed with the Justice Department that the federal district court in South Florida likely erred in blocking investigators' use of the classified records and then requiring them to submit the sensitive documents to the outside arbiter for review.

"For our part, we cannot discern why [Trump] would have an individual interest in or need for any of the one-hundred documents with classification markings," Judges Robin Rosenbaum, Britt Grant and Andrew Brasher said. "Classified documents are marked to show they are classified, for instance, with their classification level."

The former president, the judges continued, "has not even attempted to show that he has a need to know the information contained in the classified documents." The judges also said there is no evidence in the record before them that the roughly 100 documents at issue were declassified.

"In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal," the three-judge panel wrote. "So even if we assumed that [Trump] did declassify some or all of the documents, that would not explain why he has a personal interest in them."

Grant and Brasher were appointed to the 11th Circuit by Trump, while Rosenbaum was tapped by former President Barack Obama.

Federal prosecutors asked the 11th Circuit to step in last week after U.S. District Judge Aileen Cannon, appointed by Trump in 2020, denied their request to restore access to the batch of records marked classified, which were among the 11,000 documents seized in the Aug. 8 search.

In their appeal to the Atlanta-based court, Justice Department lawyers argued Cannon's order "hamstrings" its criminal probe and irreparably harms the government by blocking "critical steps of an ongoing criminal investigation and compelling disclosure of highly sensitive records," including to Trump's lawyers. They also warned Cannon's temporary ban keeping investigators from using the materials for investigative purposes "impedes the government's efforts to protect the nation's security."

The former president's legal team urged the 11th Circuit to turn down the Justice Department's request to regain access to the sensitive documents, reiterating its characterization of the court fight as a "document storage dispute that has spiraled out of control." The federal probe into Trump, his lawyers James Trusty and Christopher Kise told the court, is "unprecedented and misguided."

The former president's lawyers also repeated their argument that the Justice Department has not proven that the documents at the crux of its request to the 11th Circuit are classified.

In a late-night filing with the 11th Circuit on Tuesday, federal prosecutors pushed back on Trump's efforts to raise questions about the materials' classification status, writing that the former president has "never actually represented — much less offered evidence — that he declassified any of the relevant records." They also pointed to a detailed list of property retrieved from Mar-a-Lago in the Aug. 8 search that shows federal agents took 33 items from a storage room and desks in Trump's office that contained 103 documents marked "confidential," "secret" or "top secret."

While Justice Department lawyers and Trump battle over access to the roughly 100 documents with classified markings, proceedings for the review of the materials retrieved from Mar-a-Lago by the outside arbiter have begun.

Cannon tapped Raymond Dearie, a veteran federal judge who is semi-retired from the U.S. District Court for the Eastern District of New York, to serve as the special master last week, and the Justice Department did not try to stop his appointment as part of its request for the 11th Circuit to issue a stay on the document freeze.

Dearie, who was put forth as a candidate for the role by the former president, held his first meeting with the federal prosecutors and Trump's attorneys on Tuesday about how his vetting of the seized materials will proceed. During the 40-minute hearing in New York, Dearie appeared skeptical of Trump's objection to his request that the former president disclose information about whether the seized materials had been declassified.

Do you ever consider that Garland’s motives may be less than 100% completely good faith, good for the nation, good for mankind and the rule of law?

All the breathless hype about what a rock solid prosecutor Jack Smith is just triggers my cynicism.