Paused by a recent court ruling, the Justice Department investigation into whether former president Donald Trump illegally kept classified government documents at his Florida residence is back on track.
In a victory for the Justice Department, a federal appeals court in Atlanta ruled on Wednesday that investigators could resume examining roughly 100 classified documents seized during an FBI search of Trump’s Mar-a-Lago property on August 8.
The investigation, one of several dogging the former president, ground to a halt earlier this month after a federal judge ordered the appointment of a special master to review the seized records, barring the Justice Department from using the documents and requiring it to turn them over to the independent reviewer.
The Justice Department appealed the judge’s order.
The appellate court’s ruling means that both the criminal investigation and a separate intelligence community assessment of the risk of storing the documents at Mar-a-Lago can now proceed again, said Jordan Strauss, a former federal prosecutor now with Kroll, a risk and technology firm.
The ruling also means that the recently appointed special master, Judge Raymond Dearie, can review only the unclassified documents taken from Mar-a-Lago to determine whether any are protected by attorney-client privilege or executive privilege.
“With respect to what it means for the FBI, it means that one, the FBI will be able to continue playing the role it normally plays in national security damage assessments, and number two, that prosecutors can continue to try to use at least the classified documents,” Strauss said.
During its search of Trump’s Florida residence, the FBI removed about 11,000 documents and 1,800 other items. About 100 of the documents are classified, some bearing the highest classification markings.
The FBI is investigating at least three potential federal crimes in connection with Trump’s retention of the documents: removal or destruction of government records, illegal retention of national defense information and obstruction of justice.
The inquiry is one of several bedeviling the former president. On Wednesday, New York state’s top prosecutor announced a civil lawsuit against Trump and his three children, alleging “persistent and repeated business fraud.”
Separately, the Justice Department and a local prosecutor in the southern state of Georgia are examining efforts by Trump and his associates to overturn the outcome of the 2020 U.S. presidential election.
Trump has dismissed the investigations as politically motivated.
Whether the investigation into Trump’s handling of classified documents will lead to criminal charges against the former president or any of his aides remains uncertain.
“The ruling removes part of a delay … but it shouldn’t alter the outcome of the investigation,” Strauss said. “The outcome of that investigation will presumably be that the Justice Department will go where the facts lead it and then make, as it normally would, a decision on whether or not to charge someone with a crime.”
The subjects of the seized documents have not been revealed, but the Justice Department says some of the records are so secret that even some members of its own investigative team have not been cleared to view them.
The Trump legal team nevertheless persuaded a federal judge, Aileen Cannon of the Southern District of Florida, to prevent the Justice Department from accessing them while the special master completes his review.
In appealing Cannon’s order, the Justice Department argued that she “likely erred” in prohibiting it from using the documents.
The three-judge panel of the appeals wrote that they agreed with the Justice Department’s assessment.
A court order “delaying (or perhaps preventing) the United States’s criminal investigation from using classified materials risks imposing real and significant harm on the United States and the public,” the judges wrote.
Like Cannon, two of the judges on the panel — Andrew Brasher and Britt Grant — were nominated to the bench by Trump. The third, Robin Rosenbaum, was appointed by former President Barack Obama.
In another blow to the Trump legal team, the appellate court panel also questioned his claim that he had “declassified” the documents when he was president, writing that Trump had presented no evidence that any of the records were declassified.
But even if Trump “did declassify some or all of the documents, that would not explain why he has a personal interest in them,” the panel wrote.
Trump took to Fox News to repeat his claim about his expansive declassification powers, saying as president, he could declassify any documents “with a thought.”
“If you’re the president of the United States, you can declassify just by saying it’s declassified. Even by thinking about it. … You’re the president, you make that decision,” Trump said in response to a question by conservative host Sean Hannity.
Although American presidents do have the power to declassify secret documents, Trump’s latest claim about his presidential powers was met with skepticism.
In the wake of the latest court ruling, some legal experts suggested the former president’s claim could come back to haunt him.
“It is a position likely to further alienate both the Special Master and the appellate court, which have already expressed frustration with the lack of support offered for declassification claims,” Jonathan Turley, a conservative law professor at the George Washington University Law School, wrote in his personal blog.