Justice Dept. asks Supreme Court to reject Trump request in documents case
By Adam Liptak and Charlie Savage
The Justice Department earlier this week urged the Supreme Court to reject a request from former President Donald Trump asking the justices to intervene in the litigation over documents seized from his Florida estate.
Trump asked the court last week to step into the tangled case, saying that an appeals court had lacked jurisdiction to remove about 100 documents marked as classified from a review of the seized material. If the Supreme Court were to put the sensitive files back into that review, the government would apparently have to show them to Trump’s legal team.
In a 34-page filing, Elizabeth B. Prelogar, the solicitor general, said that the Supreme Court should let stand the appeals court’s decision while the Justice Department’s appeal of a U.S. District Court judge’s order imposing a special master unfolds. The special master was appointed to review more than 11,000 files taken in the search of Mar-a-Lago in August to determine which, if any of them, would be subject to claims of attorney-client or executive privilege.
Trump, Prelogar wrote, “has not even attempted to explain how he is irreparably injured by the Court of Appeals’ partial stay, which simply prevents disclosure of the documents bearing classification markings in the special-master review during the pendency of the government’s expedited appeal.”
In their filing last week, Trump’s lawyers did not ask the Supreme Court to overturn a more important part of the appeals court’s ruling, which allowed the Justice Department to continue using the documents with classification markings in its criminal investigation of Trump’s handling of government records.
Still, subjecting the roughly 100 documents with classification markings to review would significantly complicate the process because the first step would be to show the files to Trump’s lawyers so they can decide whether to claim that any are protected by attorney-client or executive privilege.
Some of the files with those markings are very highly classified — top secret, with further access restrictions for so-called sensitive compartmented information — and a government lawyer has questioned whether any of Trump’s lawyers can be deemed to meet the standards, including a “need to know,” to be shown them.
In its filing Tuesday, the Justice Department said the justices should not intervene because the appeals court, the 11th U.S. Circuit Court of Appeals, in Atlanta, had the authority to rule on the narrow question at issue in Trump’s Supreme Court request.
Even if that were in doubt, it added, Trump “certainly cannot establish the clear error required to justify the relief he seeks — particularly because he does not acknowledge, much less attempt to rebut, the Court of Appeals’ conclusion that the district court’s order was a serious and unwarranted intrusion on the executive branch’s authority to control the use and distribution of extraordinarily sensitive government records.”
The Supreme Court is likely to rule on the Trump’s application in the case, Trump v. United States, No. 22A283, in the coming days.
Whether Trump wins or loses this round, the Justice Department will be able to continue its review of the sensitive documents and the larger litigation will move forward.
Last week, the 11th Circuit called for briefs on a relatively brisk schedule on the Justice Department’s broader appeal from a Sept. 5 ruling by Judge Aileen M. Cannon of the Southern District of Florida appointing a special master. That briefing will conclude Nov. 17, and the appeals court will presumably hear arguments in the following weeks.
In the meantime, the special master appointed by Cannon on Sept. 15, Judge Raymond J. Dearie of U.S. District Court for the Eastern District of New York, continues his work in carrying out Cannon’s instructions to identify documents that may be subject to attorney-client or executive privilege. Should Trump prevail in the Supreme Court, documents with classified markings would again be made part of his review.
The Supreme Court is dominated by six conservative justices, three of them appointed by Trump. But it has rejected earlier efforts to block the disclosure of information about him.