WASHINGTON — Former President Donald Trump declined Thursday to appeal a court order ending his lawsuit challenging the FBI’s seizure of documents from his Mar-a-Lago resort in Florida, paving the way for investigators to finally get hold of the bulk of documents collected in the search.
The 11th U.S. Circuit Court of Appeals last week dismissed the lawsuit he filed after the Aug. 8 search. The appeals court overturned U.S. District Judge Aileen Cannon’s order appointing a special master to review the trove of documents federal agents recovered and preventing the government from using them in its investigation into Trump’s possession of sensitive records.
The appeals court had given Trump until Thursday to appeal to the full 11th Circuit or the Supreme Court and try to get a stay before the order took effect. No appeal was filed.
While Trump's team had little hope of overturning the ruling, the decision not to attempt an appeal — which was first reported by CNN — is somewhat surprising. After the FBI searched Mar-a-Lago, a top Trump adviser familiar with his legal strategy said Trump would probably “appeal everything to the Supreme Court,” adding, “We’re fighting everything.”
Lifting the restrictions on the Justice Department’s investigation could allow investigators to proceed with the probe more quickly, finally allowing them to review thousands of pages of documents that had been kept from them pending a review for privilege issues by the special master.
The appeals court had reversed part of Cannon's order that blocked investigators from being able to use classified documents recovered in the search for their criminal probe. It also barred the special master from reviewing those documents, a decision Trump appealed to the Supreme Court in October and lost.
Trump has argued in court that he has a personal ownership stake in the documents and could be able to assert attorney-client privilege or executive privilege. Outside the courtroom, in comments not echoed by his lawyers, Trump has put forth various arguments for why he believes the seized documents belong to him while at one point simultaneously accusing the FBI of planting evidence. He has also asserted that as president he had the authority to declassify documents.
Federal agents seized about 11,000 records, about 100 of them marked classified, from Trump's Florida resort amid concerns that he had unlawfully kept official White House documents after he left office.
Under federal law, official White House papers are federal property and must be handed over to the National Archives when a president leaves office.
Cannon appointed senior U.S. District Judge Raymond J. Dearie of Brooklyn, New York, to review the materials in September after Trump’s team argued that it could not rely on the Justice Department's filter team to set aside any privileged documents. The filter team is separate from the investigators conducting the criminal probe.
The Justice Department objected to the appointment of a special master to review the documents for executive privilege and attorney-client issues, saying it interfered with its criminal investigation relating to the document seizure.
Last week, the three-judge federal appeals court panel, including two judges appointed by Trump, decisively rejected Trump’s arguments and said Cannon did not have the authority to grant his request for a special master.
“The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations,” the panel wrote.
“Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.”
Trump has not had much success at the Supreme Court since he left office in January 2021. Although the court has a 6-3 conservative majority that includes three justices Trump appointed, he has lost all four of the recent previous cases in which he sought emergency relief, including a fight over the special master's access to the classified documents that are part of the Justice Department's investigation. The court also denied his attempt to prevent White House documents from being handed over to the House Jan. 6 committee and his bid to avoid disclosing his financial records to prosecutors in New York.
The most recent defeat came last month, when the court allowed Trump's tax returns to be disclosed to a Democratic-led House committee.