The motion asking the appeals court to intervene immediately intensifies the fight between the Justice Department and Trump. The 11th Circuit will face a series of legal and constitutional issues centered on Judge Cannon’s involvement in the investigation and Trump’s assertion that, as a former president, he still wields sweeping powers of executive privilege.
Six of the 11 active judges on the appeals court in Atlanta were appointed by Trump.
Judge Cannon’s order imposing a special master with broad authority and ordering the government was a victory for Trump and his legal team, which has at times struggled to keep up with the demands of the case; they submitted their request for a special master weeks later than many of his allies had urged.
However, by refusing to suspend parts of her order on Thursday, the judge also made several concessions to the government.
She said the FBI could continue parts of its investigation into what happened to the documents, as long as it doesn’t present them to a grand jury or question witnesses about their contents.
And he directed Judge Dearie to first look at documents with classification marks and “then consider quick adjustments to court orders as necessary,” a nod to the Justice Department’s request to quickly assess the most sensitive materials.
That raised the possibility that Judge Dearie could quickly remove those items and that the FBI would later regain unrestricted use of them in its criminal investigation. In her order, Judge Cannon said the special master should try to finish his review by November 30.