By Luc Cohen and Sarah N. Lynch
(Reuters) – Donald Trump’s attempt to obstruct a criminal investigation into his possession of White House documents is beginning to unravel, legal experts said, following courtroom setbacks, including doubts expressed by judges over the allegation of the former US president that he had released seized documents at his Florida home.
Trump has experienced disappointment on multiple fronts this week as his attorneys tried to slow down the Justice Department investigation that kicked into high gear with a court-approved search of his Mar-a-Lago residence on Aug. 8, in which FBI agents found 11,000 documents, including about 100 marked as classified.
A panel of three judges from the 11th U.S. Circuit Court of Appeals in Atlanta on Wednesday ruled that federal investigators can immediately resume processing the classified documents, overturning Florida-based U.S. District Judge Aileen Cannon’s decision to dismiss those documents. while an independent arbitrator decides whether something should be withheld as privileged.
“Cannon’s ruling is so far out of the norm, and the 11th Circuit has done such a good job of thoroughly dismantling its opinion,” said Jonathan Shaub, a former attorney with the Department of Justice’s Office of Legal Counsel, who is now teaches law at the University of Kentucky.
Trump can appeal the 11th Circuit ruling to the Supreme Court, but experts doubted the judges agreed to hear it. The 11th Circuit panel consisted of two Trump-appointed judges.
At stake in the investigation — one of several legal issues Trump is mired in as he contemplates running for president again in 2024 — is whether he violated federal laws prohibiting the destruction or concealment of government documents and the unauthorized possession of national government documents. prevent defense information. The Justice Department is also investigating whether Trump unlawfully attempted to obstruct the investigation.
Trump has not been charged with any crime, and the mere existence of an investigation does not mean he will be.
As part of Trump’s counterattack against the investigation, he has publicly claimed that he personally released the seized documents.
“If you’re the president of the United States, you can declassify it by saying it’s been released, even by thinking it,” Trump told TNZT News on Wednesday. “You send it to Mar-a-Lago or wherever you send it, and there doesn’t have to be a trial.”
However, Trump’s lawyers have failed to declare in court that he released the documents, although they have not admitted that they have been classified.
The 11th Circuit called Trump’s declassification argument a “red herring.” The three statutes underlying the FBI’s Mar-a-Lago search warrant make it a crime to mishandle government records, regardless of their classification status. The 11th Circuit also said it could not discern why Trump would have “an individual interest in or need” for any of the documents marked as classified.
Trump’s lawyers did not immediately respond to a request for comment.
To make matters worse for Trump, Judge Raymond Dearie — the arbitrator, or special master, Cannon appointed to review the seized documents — asked Trump’s lawyers on Tuesday why he should not consider records marked as genuine. . Dearie urged Trump’s lawyers to clarify whether they intended to claim that the data was released as Trump claims.
Trump’s lawyers suggested that Dearie serve as special master.
“Unless Trump can come up with real evidence that he went through some sort of declassification process and released this stuff, there’s no way he can overcome this, and if he had that evidence, his lawyers would have presented it,” Ilya Somin said. a law professor at George Mason University.
While he has stated that he released the data, Trump has also publicly suggested that the FBI placed them in Mar-a-Lago. Dearie on Thursday asked Trump’s lawyers to provide any evidence to support this.
David Laufman, former Justice Department chief of counterintelligence, said Trump’s comments on TNZT News were highly incriminating.
“Prosecutors are required to talk about sending documents marked as classified to Mar-a-Lago every time Trump makes a public statement equivalent to giving evidence, such as sending documents marked as classified to Mar-a-Lago because, according to his account, he was thinking of releasing them.” give,” Laufman said. said.
“It was a great day for the rule of law,” Barbara McQuade, a former federal prosecutor and current law professor at the University of Michigan, said of the 11th Circuit ruling. “It says the law is more important than one’s loyalty to a particular person.”
(Reporting by Luc Cohen in New York and Sarah N. Lynch in Washington; editing by Will Dunham)