The appeals panel agreed with the Justice Department's concerns.
"It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in ‘exceptionally grave damage to the national security,’” they wrote. “Ascertaining that,” they added, “necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised.”
An injunction that delayed or prevented the criminal investigation “from using classified materials risks imposing real and significant harm on the United States and the public,” they wrote.
Two of the three judges who issued Wednesday’s ruling — Britt Grant and Andrew Brasher — were nominated to the 11th Circuit by Trump. Judge Robin Rosenbaum was nominated by former President Barack Obama.
Lawyers for Trump did not return an email seeking comment on whether they would appeal the ruling. The Justice Department did not have an immediate comment.
The FBI last month seized roughly 11,000 documents, including about 100 with classification markings, during a court-authorized search of the Palm Beach club. It has launched a criminal investigation into whether the records were mishandled or compromised, though is not clear whether Trump or anyone else will be charged.
Cannon ruled on Sept. 5 that she would name an independent arbiter, or special master, to do an independent review of those records and segregate any that may be covered by claims of attorney-client privilege or executive privilege and to determine whether any of the materials should be returned to Trump.
Raymond Dearie, the former chief judge of the federal court based in Brooklyn, has been named to the role and held his first meeting on Tuesday with lawyers for both sides.
The appeals court ruling substantially narrowed the special master’s job duties, enabling the Justice Department to avoid providing him with classified documents to review. Responding to the order, Cannon on Thursday struck the parts of her order that required the department to give Dearie and Trump's lawyers access to the classified documents. Instead, Dearie would review the much larger tranche of non-classified government documents.
The Justice Department had argued that a special master review of the classified documents was not necessary. It said Trump had no plausible basis to invoke executive privilege over the documents, nor could the records be covered by attorney-client privilege because they do not involve communications between Trump and his lawyers.
It had also contested Cannon's order requiring it to provide Dearie and Trump's lawyers with access to the classified material. The court sided with the Justice Department on Wednesday, saying “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.”
Though Trump's lawyers have said a president has absolute authority to declassify information, they have notably stopped short of asserting that the records were declassified. The Trump team this week resisted providing Dearie with any information to support the idea that the records might have been declassified, saying the issue could be part of their defense in the event of an indictment.
The Justice Department has said there is no indication that Trump took any steps to declassify the documents and even included a photo in one court filing of some of the seized documents with colored cover sheets indicating their classified status. The appeals court, too, made the same point.
“Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified,” the judges wrote. “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.”
Colvin reported from New York.