- The DOJ's probe of the documents that Trump stashed at Mar-a-Lago has entered new legal territory.
- The department is set to appeal a judge's decision to allow a special master to review classified documents.
A Florida judge's decision to appoint a special master to review documents that former President Donald Trump stashed at Mar-a-Lago may ignite a legal battle that could delay the probe for months and throw it to the Supreme Court, experts told Insider.
On Thursday, Judge Aileen Cannon appointed Raymond Dearie, a 78-year-old former chief judge of the US District Court for the Eastern District of New York, to act as the special master, and denied the department's request for at least 100 classified documents to be turned directly over to investigators instead of the special master, dealing an early blow to federal prosecutors in their inquiry.
Last Wednesday, the DOJ appealed Cannon's initial decision to appoint a special master.
And at the end of this week, the DOJ elevated its ask to the 11th circuit appeals court and requested a partial stay on Cannon's decision around classified documents as it prepares a formal appeal.
Cannon said that the special master's review should conclude by November 30, but due to the DOJ's steady appeals process, a legal tussle over what the special master can and cannot do may be elevated to the Supreme Court and drag on the probe itself.
The case could make its way to the Supreme Court
On Friday, the DOJ said in its latest request for a partial stay that the decision to allow classified documents to be reviewed by a special master before the criminal probe can continue "hamstrings that investigation and places the FBI and Department of Justice (DOJ) under a Damoclean threat of contempt should the court later disagree with how investigators disaggregated their previously integrated criminal-investigative and national-security activities."
But a national security expert told Insider that, now, much of the timeline of the case will depend on how quickly certain appeals are ruled on.
"That'll be tested by the 11th circuit, by the Court of Appeals of Florida," Jamil Jaffer, director of the National Security program at the Antonin Scalia Law School at George Mason University told Insider. "The appeals court will assess if this case should be expedited and move more quickly than other cases."
Jaffer added that if things are not expedited, the appeals process could take months or the better part of a year.
"Can the court of appeals expedite in a form the party says we need this to move more quickly? Of course, they can, they do that with regularity," Jaffer added. "The Court of Appeals could also stay Cannon's order, pushing a pause button on it."
And if either Trump's team or the DOJ appeals a judge's decision at that level, the case could be headed to the Supreme Court.
The special master's review could go on, despite appeals
In previous filings, the DOJ has said that if the appeals court rejects the partial stay on Cannon's ruling for the DOJ to turn over 100 classified documents, they will fully appeal Cannon's decision. And if the DOJ appeals, the special master's review could still progress on a parallel track unless a higher circuit judge makes a ruling affecting the materials that the special master can review.
"Plaintiff has no claim for the return of those records, which belong to the government and were seized in a court-authorized search," prosecutors wrote in Friday's filing.
And according to court filings, Dearie has already invited the parties for a preliminary hearing next week.
"The decision not to separate the classified material shows a very unusual lack of deference by the judiciary to the executive in the area of classification," Larry Pfieffer, who formerly led the White House situation room under Barack Obama told Insider, adding that Dearie will do a "fair job."
Dearie served on the United States Foreign Intelligence Surveillance Court, meaning that in the past, he attained a high level of security clearance and reviewed classified material, Jaffer told Insider.
It's still an open question as to which security clearance Dearie will need for this review, and how long it will take to secure those authorizations, experts added.