Executive Branch

Justice Department Asks Eleventh Circuit to Vacate Special Master Order

Hyemin Han
Friday, October 14, 2022, 5:50 PM

Published by The Lawfare Institute
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On Friday afternoon, the Justice Department filed its opening brief in the Eleventh Circuit for an appeal of U.S. District Court Judge Aileen Cannon's Sept. 5 order appointing a special master to oversee privilege claims of documents seized during the Aug. 8 search of former President Donald Trump's Mar-a-Lago residence, which surfaced a swath of materials, some of which were marked as classified documents. It asked the court to vacate the district court's Sept. 5 order in its entirety with instructions to the district court to dismiss the case altogether. The Justice Department argued that Cannon erred by exercising equitable jurisdiction in a case where Trump failed to show that the government "callously disregarded" his consitutional rights in a pre-indictment criminal investigation. It also argued that even if the district court exercised proper jurisdiction, it erred in enjoining the government from reviewing the seized materials for investigative purposes before a special master review. 

In establishing the case for the Eleventh Circuit's jurisdiction to rule on the appeal, the Justice Department identified three points. First, it pointed to a conclusion in the Eleventh Circuit's partial stay of Cannon's injunction that it has pendent jurisdiction to review the special master appointment because it is "inextricably intertwined" with the appealable injunction. Second, it argued that because the district court provided an initial injunction in preventing the government from using the documents, appellate jurisdiction applies to the entire order. Finally, it cited the collateral order doctrine, which provides another basis for appellate jurisdiction when orders require disclosure of classified information.

Pursuant to the expedited appeal schedule requested by the Justice Department and granted by U.S. Circuit Judge Adalberto Jordan, Trump's response brief on this matter is due on Nov. 10.

You can read the Justice Department's brief here or below:

Hyemin Han is an associate editor of Lawfare and is based in Washington, D.C. Previously, she worked in eviction defense and has interned on Capitol Hill and with the U.S. Mission to the United Nations. She holds a BA in government from Dartmouth College, where she was editor-in-chief of The Dartmouth independent daily.

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