Trump, Justice Dept spar over power of appeals court to review special master appointment

Sept 21 - An intriguing jurisdictional question surfaced on Tuesday in appellate briefs by former President Donald Trump and the U.S. Department of Justice in the dispute over Mar-a-Lago documents: Is the 11th U.S. Circuit Court of Appeals even entitled to review a trial court order appointing a special master to vet the documents seized from Trump’s Florida estate?

There is no dispute between Justice and Trump lawyers that the appeals court has authority to decide whether to stay an injunction issued by U.S. District Judge Aileen Cannon of West Palm Beach in the Sept. 6 order granting the former president’s request for a special master. To be sure, the two sides disagree vehemently on the merits of the Justice Department’s motion for an appellate stay of Cannon’s ruling that the government may not use documents seized from Mar-a-Lago in its criminal investigation until the special master has finished vetting the material.

The Justice Department contends the delay is unwarranted and will cause irreparable harm. Trump lawyers James Trusty of Ifrah Law and Christopher Kise of Chris Kise & Associates insisted in their 11th Circuit response that Cannon’s injunction was appropriately tailored to assure a fair and orderly process. But no one has suggested that the 11th Circuit lacks jurisdiction to determine if the injunction should remain in place.

The 11th Circuit's jurisdiction to review the trial judge's appointment of the special master is not as clear, based on Tuesday's filing at the appeals court.

Trump’s lawyers told the 11th Circuit in their brief that the appeals court cannot review Cannon’s decision to bring in a special master. (The Justice Department, technically, did not ask the 11th Circuit to undo the appointment of the special master, U.S. District Judge Raymond Dearie of Brooklyn, but asked the appeals court to rule that the government is not required to disclose purportedly classified documents to the special master or to Trump counsel.) According to Trump’s brief, Cannon’s appointment order is not appealable under the federal rules for interlocutory appeals.

Only a narrow category of trial court decision can be appealed before a final judgment, the Trump brief said. Injunctions are in that narrow swath, the brief conceded, but other non-dispositive decisions are only reviewable by the appellate court if the trial judge agrees, in a written decision, that the order involves a disputed and controlling question of law and that the resolution of an appeal will advance the litigation.

“None of that occurred here,” the Trump brief said.

Trump’s lawyers cited, among other authorities, rulings from the 2nd and 7th Circuits that trial court orders appointing or referring a matter to a special master are not subject to interlocutory appeal because they are procedural decisions, not final determinations. “The government’s challenge of the district court’s order appointing the special master is therefore simply an invitation to issue an advisory opinion that this court should emphatically reject,” the Trump brief said.

The Justice Department’s reply, filed late Tuesday night, said the 11th Circuit has jurisdiction over both the injunction and the special master appointment because Cannon, the trial judge, granted Trump both forms of relief in a single order.

“The district court granted an injunction in its September 5 order,” the DOJ brief said. “It follows that this court has jurisdiction to review the entire order — including the portion directing that ‘a special master shall be appointed to review the seized property.’”

The U.S. Supreme Court, according to the government’s brief, made clear as recently as 2021, in its decision construing the scope of appellate review of an order remanding Baltimore’s climate change suit against oil companies to state court, that circuit courts are supposed to consider entire orders in interlocutory appeals, not individual issues within those orders. That’s especially true, the DOJ said, in this case, in which the indisputably appealable injunction is inextricably intertwined with the special master’s appointment, since Cannon barred the government from using seized documents in its criminal investigation until the special master has concluded his review of the material.

Moreover, the Justice Department said, a ruling that potentially exposes sensitive national security materials may be immediately appealable because of its inherent importance, regardless of whether it’s tied to an injunction. And finally, the DOJ brief argued in a footnote, if the 11th Circuit has any doubts about its jurisdiction to review the special master order, the court can convert the government’s stay motion into a petition for mandamus relief.

Happily for the Justice Department, the 11th Circuit pulled that very maneuver in a 1988 decision calling a halt to discovery in a case ordered to arbitration, although 11th Circuit Judge Gerald Tjoflat, who wrote the 1988 ruling, cautioned that mandamus petitions and interlocutory appeals should not be considered interchangeable.

A Justice Department spokesperson declined to comment on the jurisdictional issue beyond the government’s brief. I emailed Trump lawyers Kise and Trusty to ask about the DOJ response to their contention that the 11th Circuit cannot review the special master appointment but didn’t hear back.

The heart of the Mar-a-Lago document appeal, of course, is the government's contention that Trump, as a former president, is simply not entitled to the return of seized documents with classification markings, and Trump’s retort that the Justice Department cannot be the sole arbiter of the status of the seized documents.

The 11th Circuit’s jurisdiction to review the special master’s appointment is a bit of a tangent, particularly because the government’s request for a stay did not actually challenge Dearie’s appointment but only asked the appeals court to block the disclosure of classified documents to the special master. (Dearie, meanwhile, reportedly said at a hearing on Tuesday that he may not even need to see the classified documents.)

But once in a while, these oddball issues turn out to be more important than expected. In a case in which just about everything is unprecedented — from the seizure of documents at a former president's residence to the appointment of a special master to review the documents’ classification — even procedural questions carry heavy weight.

Read more:

U.S. urges appeals court to block Trump from reviewing classified records

Judge asks Trump's lawyers if he declassified records in FBI search

Justice Dept. asks appeals court to allow review of classified documents in Trump probe

(Editor's note: After the original publication of this column, the 11th U.S. Circuit Court of Appeals ruled that the U.S. Justice Department can resume reviewing classified records seized by the FBI from former President Donald Trump's Florida home pending appeal.)

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