A federal appeals court appeared ready Tuesday to side with the Department of Justice in its effort to wipe out a lower court order that slowed a criminal investigation into documents seized from Donald Trump’s private club at Mar-a-Lago.

At least two of the three judges on a panel of the U.S. Court of Appeals for the 11th Circuit, both Republican appointees, aired a skeptical view of an injunction that prevented the DOJ from using documents marked as classified that the FBI found in the August search.

Chief Judge William H. Pryor Jr. and Judge Britt Grant repeatedly pointed to the unprecedented move of a trial court judge, who stopped the criminal investigation into the former president without finding that the government search broke the law.

Typically, the subject of a search that was conducted with a warrant signed by a federal judge, as the Trump warrant was, could challenge that search during the criminal process after they are indicted. Allowing the subject of a search to challenge the search ahead of time stepped on the government’s authority, Pryor said.

“Think about the extraordinary nature of this from our perspective — an injunction against the executive branch in a pre-indictment situation,” Pryor said to Trump attorney James Trusty. “Under the separation of powers, the judiciary doesn’t interfere with that.”

Trump initially filed a challenge and got a court order from District Judge Aileen Cannon, whom he appointed, that halted the use of the documents in the criminal probe and sent all documents seized in the search to a special master for review.

The 11th Circuit panel heard arguments Tuesday on the Justice Department’s request for the appeals court to erase the lower court order with instructions that Cannon doesn’t have jurisdiction to make such an order — or essentially end the case.

The third member of Tuesday’s panel, Judge Andrew Brasher, already sided with the DOJ in an initial ruling over the classified documents, which found Cannon likely erred when she issued the injunction.

In less than an hour of arguments Tuesday, Pryor and Grant also questioned whether allowing Trump to challenge the warrant in this way would open the door for all criminal defendants to challenge any government search.

In an extended exchange, the pair pushed Trump attorney Jim Trusty to identify whether there was any difference between Trump’s challenge and a general case launched by a criminal defendant.

“Your answer is there is no difference,” Pryor said.

“Correct,” Trusty said.

Political case

The case could test the limits of presidential power and congressional oversight, as House Republicans have pledged to investigate what they call “politicization” of the DOJ when they take control of the chamber in January.

Throughout the court fight so far, Trump has argued the Biden administration abused the criminal justice process to take out a potential political rival. He has also asserted that he had broad declassification powers while president but has not claimed he declassified the documents at issue.

During the arguments Tuesday, Justice Department attorney Sopan Joshi said Trump used legal arguments that are “supposed to be unusual, supposed to be rare” to stop a criminal investigation rather than rectify a violation of his rights.

“What he wants is to prevent the government from using the documents, and I’m not sure that would ever be a valid justification,” Joshi said.

Joshi argued that Trump hasn’t shown that the search violated his rights or federal law, and Trump already has copies of the nonclassified documents seized in the search.

Separately, Pryor noted Trump had not established a critical fact: that the DOJ broke the law.

“The entire premise of this extraordinary kind of jurisdiction would be that the seizure of itself is unlawful. And if you can’t establish that, then what are we doing here?” Pryor said.

Potential rival

In the lower court, Trump successfully argued that his status as former president and potential presidential candidate justified the order halting the investigation. However, that argument faced skepticism from the appeals court panel Tuesday.

At one point, Grant, a Trump appointee, balked at Trump attorney Trusty’s description of the search as a “raid.”

“Do you think that ‘raid’ is the right term for execution of a warrant?” Grant asked, interrupting Trusty.

“Execution of a warrant, that’s fine, your honor. I apologize for using a more loaded term,” Trusty said.

The arguments come just days after Attorney General Merrick B. Garland named war crimes prosecutor John L. “Jack” Smith as a special counsel to lead the probe as well as another one investigating efforts to overturn the 2020 presidential election results. Garland said he made the move following the “extraordinary circumstances” of Trump’s declaration last week that he would run for president in 2024.

Court documents released since the August search showed the government is investigating potential espionage, destruction of government documents and other crimes related to the storage of documents at the club. The unprecedented search of the former president’s club came after more than 18 months of wrangling, with the National Archives and Records Administration seeking the return of government documents that Trump took with him at the end of the term.

Federal agents sought a search warrant in August after compiling evidence that Trump kept classified records at his private club, according to court documents. Since then, the government has said in court that 11 sets of those documents, about 100 in total, were marked with some form of classification.