Legal experts say appeals ruling is a bad sign for Trump
A U.S. appeals court on Wednesday granted the Justice Department's request to expedite its consideration of whether an outside legal expert should have been appointed to review the 11,000 documents seized by the FBI at former President Donald Trump's Florida residence.
The 11th Circuit Court of Appeals issued an order shortening the timeline for the Justice Department and Trump's lawyers to finish submitting legal briefs to the court by November 17 after the DOJ argued that delaying the process could harm the agency's investigation into the potential illegal retention of classified documents.
Judge Aileen Cannon's injunction against the DOJ's review of the material "caused irreparable harm because it constrained the government's ability to assess and mitigate the national security risks arising from the improper storage of classified records and because the injunction hindered the government's ability to conduct its criminal investigation," the DOJ filing said.
Trump's lawyers opposed the request to expedite the case, arguing that they were not given enough time to file their brief in the case.
"The Government, on the other hand, cannot possibly be prejudiced if this appeal is not expedited and President Trump is afforded the few extra days provided under the Rules to file his brief," Trump attorney Christopher Kise said in the filing.
In the new schedule set by the 11th Circuit, federal prosecutors must file their initial brief by Oct. 14, giving Trump's team until Nov. 10 to respond. If the Justice Department chooses to reply, they have until Nov. 17 to do so. The court will not allow for any extensions.
The previous schedule set by the court provided that federal prosecutors file their initial brief by Oct. 19, giving Trump's lawyers until Nov. 18 to respond, and the government to file its reply by Dec. 9.
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The Justice Department already has more than 100 documents marked as classified that the FBI took from Mar-a-Lago, but appointing a special master temporarily bars investigators from using the 11,000 seized documents in the criminal investigation.
However, expediting the appeal means the 11th Circuit may rule on the case before Judge Raymond Dearie does, possibly by the end of next month. Meanwhile, Dearie's deadline is for December 16.
Former federal prosecutor Andrew Weissmann noted on Twitter that Trump opposed the DOJ request in this matter while pushing for an expedited appeal in the Supreme Court.
"Eleventh Circuit not to be outplayed by Trump's Hail Mary to Supreme Court, where he incidentally asked for an expedited appeal while opposing the expedited schedule in the Eleventh Circuit," he wrote. "Nice to see the Circuit having none of it."
Renato Mariotti, a former federal prosecutor, also added that this is "a bad sign for Trump".
"It is apparent that the panel takes DOJ's concerns seriously," he tweeted.
"Trump had opposed DOJ's motion to expedite the 11th Circuit appeal from Cannon's appointment of a special master," wrote Harvard Law Professor Laurence Tribe. "Without dissent, the Circuit Court rejected Trump's opposition, which was as baseless as is his trip to the Supreme Court on a collateral aspect of Cannon's order."
A different three-judge panel will review the appeal than the circuit court panel that sided with DOJ in earlier litigation. If the ruling is in the government's favor, then it could have the potential to end the litigation over the seized materials and the outside review of those documents.
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