By Sarah N. Lynch
WASHINGTON (Reuters) - A U.S. appeals court on Wednesday agreed to fast-track a legal challenge to a third-party review of most of the records seized by the FBI from former President Donald Trump's home, after prosecutors complained the process is hampering their investigation.
The decision by the Atlanta-based U.S. Court of Appeals for the 11th Circuit represented a small victory for the Justice Department, which had sought an expedited appeal, and a blow to Trump, who had tried to slow-walk the litigation.
At the heart of the dispute is a decision by U.S. District Judge Aileen Cannon, a Trump appointee, who last month appointed Senior Judge Raymond Dearie as special master to review more than 11,000 records recovered from Mar-a-Lago to weed out any that could be privileged and should be shielded from investigators.
Trump is facing a criminal investigation by the Justice Department for retaining government records - some marked as highly classified, including "top secret" - at his Mar-a-Lago estate in Florida after leaving office, and for possible obstruction. The FBI seized the records in a court-approved search in August.
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Cannon's order, however, effectively paused the investigation by ruling that prosecutors could not continue using the documents for their criminal probe until Dearie's review was complete.
In its filing, the Justice Department said this prohibition was hampering its probe into the mishandling of records and possible obstruction, and that it needs to be able to examine non-classified records that may have been stored in close proximity to classified ones.
Those non-classified records, the department said, "may shed light" on how the documents were transferred to or stored at the Mar-a-Lago estate, and who might have accessed them.
This marks the second time now that the 11th Circuit has ruled favorably for the Justice Department.
Last month, the Justice Department appealed another portion of Cannon's order which also blocked them from using approximately 100 seized records marked as classified for their criminal probe, and required prosecutors to make those classified materials available to Dearie for his review.
A panel of three judges, two of whom were appointed by Trump, sided with the Justice Department's request, finding that Cannon had erred by including those records in the special master review and precluding the Justice Department from accessing them for its probe.
Trump on Tuesday asked the Supreme Court in an emergency request to overturn a portion of the 11th Circuit's ruling, saying the 100 records marked as classified should be part of the special master's review.
In the Justice Department's latest and broader appeal over the special master appointment before the 11th Circuit, a different three-judge panel will review the case.
A date for oral arguments has not yet been set.
A ruling in the government's favor would have the potential to end the litigation over materials seized in the search as well as the outside review of those documents.
(Reporting by Sarah N. Lynch; Additional reporting by Ismail Shakil and Doina Chiacu; Editing by Tim Ahmann and Rosalba O'Brien)