The issue lies with the interpretation of "callous disregard." In their released statement, the Department of Justice stated that the Eleventh Circuit should be required by precedence to exercise equitable jurisdiction in the pre-indictment proceeding only if and when the government acts with "callous disregard" of the rights of an investigation. Judge Cannon, the U.S. District Judge for this case, approved Trump's team's request for a special master in regards to the Mar-a-Lago seizure. Judge Cannon allowed the appointment of a special master, even though the requirement for "callous disregard" was not met. Now, the Department of Justice states that, "Under this court's precedent, it requires, at a minimum, a showing that the government callously disregarded plaintiff's constitutional rights. Nothing like this was shown in this case, as the district court acknowledged."

An additional argument is made by the prosecution. They assert that even if the Judge were acting proper when she exercised her jurisdiction to appoint a Special Master, she erred when she blocked the further review of the seized Mar-a-Lago evidence while the review of the special master was still pending.

Trump continues his attempts to block the review of the records, asserting client privilege as his defense. These documents do not fall under attorney-client privilege. According to the Department of Justice, "His suggestion that he could have declassified the records bearing classification markings is unsubstantiated and irrelevant here, and his suggestion that he could have designated government records as his 'personal' records under the [Presidential Records Act] would only undermine any claim of executive privilege".

In September, the Department of Justice's request for a stay of injunction was granted. Then, on October 13, 2022, Trump's appeal to the Supreme Court was rejected. There are eleven thousand documents currently under review by a special master know known as Judge Raymond Dearie. Judge Dearie will be investigating Trump and the possible violations of the Espionage Act and obstruction of justice charges. The Eleventh Circuit will be reviewing the appointment of the special master on an "expedited basis".

The case is Trump v. U.S., case number 22-13005, in the U.S. Court of Appeals for the Eleventh Circuit.