美国第11巡回上诉法院的法官小组已经批准了司法部的请求维持美国地区法官艾琳·坎农(Aileen Cannon)的部分裁决，该裁决实际上暂停了政府对前总统唐纳德·特朗普(Donald Trump)离任后可能不当处理机密记录的调查。
由两名特朗普任命的法官和一名巴拉克·奥巴马任命的法官组成的三人小组周三一致裁定，司法部不再被禁止调查从Mar-a-Lago回收的带有分类标记的文件，也不再需要将这些材料提交给特别大师雷·迪尔里接受他的审查。
“[特朗普]甚至没有试图表明他需要知道机密文件中包含的信息，”该小组在裁决中写道。"他也没有证实现任政府已经放弃了对这些文件的要求."
法官们还同意司法部的意见，即特朗普没有提交任何记录或声称他曾解密过有争议的文件-这削弱了特朗普在社交媒体上的声明。在Dearie的压力下，他的团队拒绝透露太多在周二的另一场听证会上。
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“无论如何，至少就这些目的而言，解密的论点是在转移视线，因为解密一份官方文件不会改变其内容或使其个人化，”法官写道。“因此，即使我们假设原告确实解密了部分或全部文件，那也不能解释为什么他对这些文件有个人兴趣。”
本月早些时候，特朗普提名的坎农法官批准了他的请求，让一名特别的大师来审查什么是在法庭授权的搜查中被联邦调查局带走上个月在Mar-a-Lago。
根据坎农的命令，特别硕士的审查将针对可能同时受到律师-客户特权和行政特权保护的项目，尽管特朗普不再是总统，也从未对任何具体记录主张特权。
坎农的裁决禁止政府在刑事调查中进一步使用被扣押的文件，这一裁决受到了持各种政治观点的法律专家的广泛批评，包括特朗普的前司法部长威廉·巴尔。
坎农写道:“法院特此授权任命一名特别检察官，审查被扣押的个人物品和文件以及可能享有特权的材料，这些材料受到律师-客户和/或行政特权的影响。”她引用了“在特殊情况下，至少需要确保公平和正直的外表。”
第11巡回审判小组周三裁定，如果坎农的命令被部分搁置，他们不认为特朗普会面临不可挽回的伤害，因为他没有对任何有分类标记的争议文件主张律师-客户特权。
三名法官也直接削弱了坎农的说法，指出政府“很可能成功”证明她“滥用了(她的)自由裁量权，对(特朗普的)动议行使管辖权，因为它涉及机密文件。”
“根深蒂固的原则是，‘法院必须行使传统的不愿意在军事和国家安全事务中侵犯行政当局的权力’，这一原则指导着我们对美国提出的国家安全问题的审查，”上诉法官写道。
司法部此前要求坎农部分搁置她的命令，涉及特别硕士和审查机密文件。但她拒绝了该动议，政府寻求上诉。
Cannon在拒绝政府的延期请求时写道，她不愿意接受他们的说法，即从Mar-a-Lago取走的大约100份文件是机密的，尽管它们被贴上了这样的标签，其中一些带有“秘密”和“绝密/SCI”标记。
坎农在拒绝书中写道:“在没有中立的第三方以快速有序的方式进行进一步审查的情况下，法院认为接受政府在这些重要和有争议问题上的结论是不合适的。”
她非常怀疑政府关于带有机密标记的文件的论点，以及政府声称特朗普根本无权获得这些材料的说法。
在上周提出的第11巡回法院部分延期的动议中，司法部认为，坎农“进入了一个前所未有的命令，禁止行政部门在对国家安全有直接影响的刑事调查中使用自己的高度机密记录。”
虽然坎农裁定，情报界可以继续对特朗普处理文件可能带来的国家安全风险进行评估，但政府在法庭文件中表示，这种分离是不可行的。
第11巡回法官同意司法部的意见。
他们在周三的裁决中写道，坎农试图将情报委员会的分类审查与联邦调查局自己的刑事调查区分开来的努力是“站不住脚的”，他们认为联邦调查局已经“充分解释了其国家安全审查与其刑事调查如何以及为什么不可避免地交织在一起。”
Former President Donald Trump speaks at a Save America Rally to support Republican candidates running for state and federal offices, Sept. 17, 2022 in Youngstown, Ohio.
杰夫·斯文森/盖蒂图片社
“除了猜测之外，没有任何一方提出任何东西来破坏美国的陈述——由宣誓证词支持——即刑事调查的结果可能对其国家安全审查至关重要，”法官写道。“根据美国的说法，刑事调查将设法确定，除其他外，接触机密材料的任何人的身份;是否有任何特定的机密材料被泄露;以及是否有其他机密材料下落不明。正如(特朗普)承认的那样，回顾性调查是刑事调查人员的领域。”
“如果不允许美国的刑事调查人员查看被查封的机密材料，美国将很难(如果不是不可能的话)回答这些关键问题，”他们补充道。
在对坎农评估的另一次拒绝中，法官们写道，他们同意政府的观点，即允许特别检察官迪尔里作为外部第三方，与特朗普的法律团队一起检查机密记录，可能会“造成不可挽回的伤害”。
他们写道，“最高法院已经认识到，由于‘太明显而不需要扩大讨论的原因，保密信息的保护必须由负责机构的广泛酌处权来承担，这必须包括确定谁可以接触到它的广泛酌处权。”。“因此，只有在最特殊的情况下，法院才应下令审查这类材料。记录不允许得出这是这种情况的结论。”
前总统川普可能会寻求上诉到第11巡回上诉法院，甚至可能是最高法院，但不清楚在DOJ获得这些文件的情况下，他们的上诉需要多长时间才能生效。
DOJ can continue Trump classified docs investigation without special master: Appeals court
A panel of judges on the 11th U.S. Circuit Court of Appealshas granted a request from the Justice Departmentto stay portions of a ruling by U.S. District Judge Aileen Cannon that had effectively paused the government's investigation into former President Donald Trump's potential mishandling of classified records after leaving office.
The three-judge panel, comprised of two Trump appointees and a Barack Obama appointee, ruled unanimously on Wednesday that the Justice Department is no longer enjoined from investigating the documents with classification markings that were recovered from Mar-a-Lago and will no longer have to submit those materials tospecial master Ray Deariefor his review.
"[Trump] has not even attempted to show that he has a need to know the information contained in the classified documents," the panel wrote in its ruling. "Nor has he established that the current administration has waived that requirement for these documents."
The judges also agreed with the Justice Department that Trump has submitted no record or claim that he ever declassified the documents at issue -- which undercut Trump's statements on social media otherwise. His team resisted stating as much when pressed by Dearieduring a separate hearing on Tuesday.
"In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal," the judges wrote. "So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them."
Earlier this month, Judge Cannon, who was nominated by Trump, granted his request for a special master to review what wastaken by the FBI in a court-authorized searchof Mar-a-Lago last month.
The special master's review, as ordered by Cannon, was to be for items that might be covered by both attorney-client privilege and executive privilege, even though Trump is no longer the president and has never asserted privilege over any specific records.
Cannon's ruling, which enjoined the government from further use of the seized documents as part of its criminal investigation, was widely criticized by legal experts with a range of political views -- including Trump's former Attorney General William Barr.
"The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege," Cannon wrote. She cited "the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented."
The 11th Circuit panel ruled Wednesday that they don't believe Trump would risk irreparable injury if Cannon's order is partially stayed because he has not asserted attorney-client privilege over any of the documents at issue with classification markings.
The three judges undercut Cannon directly as well, noting the government is "substantially likely to succeed" in showing she "abused [her] discretion in exercising jurisdiction over [Trump's] motion as it concerns the classified documents."
"The engrained principle that 'courts must exercise the traditional reluctance to intrude upon the authority of the Executive in military and national security affairs' guides our review of the United States's proffered national-security concerns," the appellate judges wrote.
The Justice Department previously requested that Cannon partially stay her order, relating to the special master and review of classified documents. But she rejected that motion and the government sought an appeal.
Cannon, in denying the government's request of a stay, wrote that she was not willing to accept their assertions that the roughly 100 documents taken from Mar-a-Lago were classified -- even though they were labeled as such, with some bearing "SECRET" and "TOP SECRET/SCI" markings.
"The Court does not find it appropriate to accept the Government's conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion," Cannon wrote in her rejection.
She approached with heavy skepticism the government's arguments about the documents with classified markings and the government's claims that Trump has no right to the materials at all.
In its motion last week for a partial stay from the 11th Circuit, the Justice Department argued that Cannon "has entered an unprecedented order enjoining the Executive Branch's use of its own highly classified records in a criminal investigation with direct implications for national security."
And while Cannon ruled that the intelligence community could continue its own assessment of the possible national security risks from Trump's handling of the documents, the government said in court papers that such a separation was not feasible.
The 11th Circuit judges agreed with the Department of Justice.
They wrote in their Wednesday ruling that Cannon's effort to distinguish the intelligence committee's classification review from the FBI's own criminal investigation was "untenable" and that they believe the FBI has "sufficiently explained how and why its national-security review is inextricably intertwined with its criminal investigation."
"No party has offered anything beyond speculation to undermine the United States's representation—supported by sworn testimony—that findings from the criminal investigation may be critical to its national-security review," the judges wrote. "According to the United States, the criminal investigation will seek to determine, among other things, the identity of anyone who accessed the classified materials; whether any particular classified materials were compromised; and whether additional classified materials may be unaccounted for. As [Trump] acknowledges, backwards-looking inquiries are the domain of the criminal investigators."
"It would be difficult, if not impossible, for the United States to answer these critical questions if its criminal investigators are not permitted to review the seized classified materials," they added.
In another rejection of Cannon's assessment, the judges wrote that they agreed with the government's arguments that allowing special master Dearie, as an outside third-party, to examine the classified records with Trump's legal team could "impose irreparable harm."
"The Supreme Court has recognized that for reasons 'too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it,'" they wrote. "As a result, courts should order review of such materials in only the most extraordinary circumstances. The record does not allow for the conclusion that this is such a circumstance."
Former President Trump could seek to appeal to the full 11th Circuit Court of Appeals or even potentially the Supreme Court, but it's unclear how long it would take either to act on their appeal while the DOJ has access to the documents.
