The case of the Donald Trump papers has temporarily entered a dead end.
The former president's lawyers have managed to paralyze the investigation thanks to the decision of a federal judge, appointed by Trump himself, to appoint an independent expert to review the documents seized in the Mar-a-Lago registry before the Department of Justice and the FBI can continue to work with them on the investigation.
The prosecution has appealed with the aim of being able to continue examining at least the hundred confidential documents found.
Otherwise, he alleges, it would cause "irreparable damage" to the investigation.
The Justice Department tends to keep a lower profile when an election approaches.
Less than two months before the legislative elections on November 8, he will not be able to continue working discreetly for the time being.
In her order, the judge "temporarily prohibits the Government from reviewing and using the seized materials for investigative purposes until the special master's review is completed or a new court order is issued."
The Government may continue to review and use the documents for purposes of intelligence classification and national security assessments, but not for investigation as such.
In her decision, Judge Aileen Cannon is aware that a decision like hers is not the usual one and implicitly admits special treatment towards Trump: “Based on the nature of this action, the principles of equity require that the court consider the specific context at issue, and that consideration is inherently impacted by the position previously held by the plaintiff,” referring to his previous position as president.
Without referring explicitly to this case, the attorney general, Merrichk Garland, head of the Department of Justice, warned this Saturday at an event in New York that the rule of law or the rule of law is "fragile" and must be taken care of: “The Rule of Law means that the law treats us all equally: There is no one rule for friends, another for enemies;
one rule for the powerful, another for the powerless;
one rule for the rich, another for the poor,” he noted.
Judge Aileen Cannon has appointed semi-retired New York Judge Raymond J. Dearie as a special expert, who was proposed by Trump's lawyers and accepted by the Prosecutor's Office.
His job is to check if some of those documents are protected by attorney-client privilege or executive privilege.
The first protects the professional secrecy that affects the relations between a person under investigation and his lawyer, to the extent that they may affect the right of defence.
The second refers to the ability of the Executive Power to deny in certain cases documents to other powers of the State, such as the Legislative or the Judicial, a strange allegation for someone who is no longer part of that power and to oppose it to those who now do. holds.
It will be Trump who bears the expenses of the special expert and with the administrative support he needs, but his work reviewing the more than 11,000 documents can take a long time.
For this reason, the Department of Justice appealed to the judge to at least allow him to continue investigating the hundred seized documents that are marked as confidential.
She is denied, although she has made a small concession: she orders the expert to review them first and opens the door to reconsider his decision later.
The prosecution does not consider it sufficient and has appealed to the higher court.
"The district judge has issued an unprecedented order that prohibits the use by the Executive Branch of its own highly classified records in a criminal investigation with direct implications for national security," it states in its appeal to the 11th Court of Appeals. Circuit, asking it to “suspend only those portions of the order that cause the most serious and immediate harm to the Government and the public by restricting the Government's review and use of records bearing classification marks and requiring the Government to disclose those records for a special review process.”
The Justice Department argues that the privileges claimed by Trump cannot be applied to the classified documents.
"The plaintiff cannot claim the return of those records, which belong to the government and were seized in a court-authorized search," he explains, adding that they are "central to the ongoing investigation."
Trump and his lawyers have been playing cat and mouse with the idea that those documents could have been declassified.
The former president has affirmed it on his social network, but the lawyers have avoided getting wet in court.
That has allowed the judge to say that they have to be reviewed like everyone else and that the conclusions will be drawn.
In its appeal, the Justice Department alleges that refusing to continue working with those documents could cause irreparable harm.
And regarding the possibility that they are declassified, it says: “Despite multiple opportunities, the plaintiff has never stated that he has in fact taken any of those steps, much less has he supported such a statement with competent evidence.
The court was wrong to grant an extraordinary measure based on unproven possibilities.”
The Court of Appeals to which the appeal corresponds is based in Atlanta and 6 of its 11 magistrates have been appointed by Trump himself.
Regardless of the final outcome of the appeal, Judge Cannon's action has already had one consequence: it has caused the case to become entangled in court and the investigation to be delayed.
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