CNN
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Former President Donald Trump on Tuesday asked the Supreme Court to intervene in the dispute over documents marked as classified that the FBI seized from his Mar-a-Lago estate this summer.
His urgent request to the Supreme Court is the latest example of the former president seeking to involve the judges in entangling inquiries – at a time when the legitimacy of the High Court in politically volatile cases is the subject of careful scrutiny.
Trump is specifically asking the court to ensure that the more than 100 documents marked as classified are part of the master’s special examination. The request, if granted, could bolster the former president’s bid to challenge the search in court, as he argued that he may have the right as a former president to own certain government documents, including documents potentially containing the country’s most sensitive documents. secrets.
Trump, however, is not asking the Supreme Court to bar the Justice Department from using the documents in its criminal investigation into how his White House records were mishandled.
Judge Clarence Thomas – the recipient of Trump’s request because he oversees litigation coming from the circuit court which is handling the appeal of the special order – gave the Justice Department a 5 p.m. deadline on Tuesday October 11 to respond.
It remains to be seen whether allowing the special master – a third-party lawyer responsible for reviewing evidence and filtering privileged documents – to also access classified documents poses a real threat to the criminal investigation. It’s also unclear how supportive the High Court will be of Trump’s claims, which are largely based on technical arguments about whether an appeals court had the power to withdraw the 100 documents from consideration.
Late last year, Trump asked judges to block the release of documents from his White House to congressional investigators on Jan. 6, 2021. The high court denied the request.
Trump’s urgent request to the Supreme Court comes after the 11th U.S. Circuit Court of Appeals sided with the Justice Department and said the department’s criminal investigation into the documents marked as classified could continue. The investigation’s use of the records had been suspended by a Florida district judge, who had granted Trump a request for a third-party review of documents obtained during the Mar-a-Lago search. This appeals court is now considering striking out the rest of the special order.
Trump is not asking the High Court to restore the stranglehold that Judge Aileen Cannon — a U.S. district judge he appointed in 2020 — has imposed on the Justice Department’s investigation into access to marked documents classified. But Trump wants those documents handed over as part of the documents the special master reviews.
In the new filing, Trump’s lawyers said “any limits on the full and transparent review of documents seized in the extraordinary search of a president’s home erodes public confidence in our justice system.”
They also pushed back against Justice Department claims that including the documents in the special main examination would pose national security risks.
“The government argued on appeal, without explanation, that showing the allegedly classified documents to Judge Dearie would harm national security,” Trump’s lawyers said, referring to Senior Judge Raymond Dearie, who was named special master in the case. the dispute. The Trump team said that position “cannot be reconciled” with the DOJ saying it might want to show those same documents to a grand jury or witnesses in interviews.
In documents filed in lower court, the Justice Department also warned that Dearie’s review covering those documents would potentially allow members of Trump’s legal team access to them, including lawyers whom the department reported that it was considering possible witnesses in its investigation.
Cannon, the Justice Department previously told the 11th Circuit, had “ordered the release of highly sensitive documents to a special master and plaintiff’s attorney — potentially including witnesses to relevant events — amid a investigation, where no charges were laid.
The purpose of getting a special master to review these documents isn’t fully fleshed out by Trump’s new Supreme Court filing. Trump nodded at Cannon’s claim that he, as a former president, would suffer “reputational damage of a decidedly different order of magnitude” if indicted on the basis of illegally seized evidence . This justification was outright rejected by the 11th Circuit, when it cut the special main examination documents.
Elsewhere in the new request, Trump indicated his desire to include the documents marked as classified in churning out the challenges his lawyers will have to deal with before Dearie through the special master’s process. He reiterated arguments – viewed with extreme skepticism by a wide range of legal experts – that the Presidential Archives Act could protect him from criminal charges brought for his handling of the documents. Trump also hinted that he may have declassified the documents in question. As he did in the early stages of the litigation, however, Trump refrained from making that outright assertion.
On Tuesday, Trump told the Supreme Court that Cannon had the authority to refer “these matters to a special master to determine whether documents bearing classification marks are in fact classified, and regardless of the classification, whether those records are personal records or presidential records, such that their disposal can be properly managed under the PRA. »
“The government’s position assumes that some documents are in fact classified, giving President Trump no opportunity to claim otherwise. This presumption is at the heart of the dispute,” he said.
Trump’s request lands on the Supreme Court’s doorstep as it begins a new term where the justices will consider several high-profile cases.
The Supreme Court, with its current conservative majority, is already viewed by the American public as partisan following a series of controversial rulings this year, including the overturning of Roe v. Wade, and will likely make the search for Mar-a-Lago even more of an issue in the upcoming midterm legislative elections.
Trump named three of the current judges: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Additionally, the judge receiving emergency Supreme Court requests from Florida is Conservative Thomas, though he is almost certain to send the request back to the full court for consideration.
Thomas’s wife, conservative activist Ginni Thomas, encouraged efforts to annul the 2020 presidential election and testified before the House Select Committee investigating the January 6, 2021 attack on the U.S. Capitol .
CNN senior legal analyst Elie Honig said the call was intended to delay the Justice Department’s investigation into the former president, if possible.
“It’s part of the delay strategy,” Honig said on CNN’s “The Lead with Jake Tapper,” noting that Trump lost in appeals court. “So either he accepts this loss and these documents don’t go to the special master and they go straight to the DOJ, or his only recourse left is to try and get the Supreme Court to take it, and that’s the course which he now follows.”
Honig said it was a “close call” if the court would take up the case.
“The Supreme Court generally likes to steer clear of messy political disputes,” Honig said. “On the other hand, when it comes to unique and novel issues of constitutional law, separation of powers, issues like executive privilege and classification of documents, it’s sort of the The reason the Supreme Court exists is to adjudicate these high-level disputes between branches that involve some sort of fundamental constitutional principles.
This story was updated with additional details on Tuesday.