By Adam Liptak and Charlie Savage
Former President Donald Trump asked the Supreme Court earlier this week to intervene in the litigation over sensitive documents that the FBI seized from his Florida estate, saying that an appeals court had lacked jurisdiction to remove them from a special master’s review.
But Trump’s lawyers did not ask the Supreme Court to overturn the most important part of the appeals court’s intervention, its decision to free the Justice Department to continue using documents with classification markings in its criminal investigation of Trump’s handling of government records.
The new filing was technical, saying that the 11th U.S. Circuit Court of Appeals, in Atlanta, had not been authorized to stay aspects of a judge’s order appointing a special master to review all materials that the FBI had seized in its search of Trump’s residence, Mar-a-Lago.
“The 11th Circuit lacked jurisdiction to review the special master order, which authorized the review of all materials seized from President Trump’s residence, including documents bearing classification markings,” the application said.
The court requested a response from the Justice Department by 5 p.m. next Tuesday.
Even if Trump were to prevail, his victory would be distinctly modest. It would merely allow the special master to review those documents even as the Justice Department continues its work.
Although the Supreme Court is dominated by six conservative justices, three of them appointed by Trump, it has rejected earlier efforts to block the disclosure of information about him, and legal experts said Trump’s new emergency application faces significant challenges.
Stephen Vladeck, a law professor at the University of Texas, said Trump was pursuing a limited and curious litigation strategy in trying to reinstate part of a ruling from Judge Aileen Cannon of the Southern District of Florida.
Trump’s application, Vladeck said, presented “technical procedural questions on which the justices may be even less likely to be sympathetic to the former president.”
Specifically, the filing focused on two decisions by Cannon. On Sept. 5, she ordered the appointment of a special master and temporarily barred investigators from using any of the seized materials, including those marked as classified, until that review was done.
And on Sept. 15, she appointed a special master, Judge Raymond Dearie of U.S. District Court for the Eastern District of New York, and laid out the parameters of his review, including identifying any documents that might be subject to attorney-client or executive privilege.
In removing the sensitive documents from Cannon’s intervention, the appeals court blocked parts of her orders. But Trump’s lawyers argued that only the first order, which temporarily prevented the Justice Department from using the files for its investigation, was properly before the appeals court, so it lacked authority to restrict the special master’s review.
Since the appeals court ruling, Cannon has modified her Sept. 15 order, discarding her instructions to Dearie to assess the materials marked as classified, but if the Supreme Court rules in Trump’s favor, she could reinstate them.
That would not, however, prohibit the Justice Department from continuing to use the classified records.
The brief added that larger issues are in play. “The unprecedented circumstances presented by this case — an investigation of the 45th president of the United States by the administration of his political rival and successor — compelled the district court to acknowledge the significant need for enhanced vigilance and to order the appointment of a special master to ensure fairness, transparency and maintenance of the public trust.”
In September, a three-judge panel for the 11th Circuit unanimously granted a request from the Justice Department to block one aspect of a ruling from Cannon, who had prohibited the Justice Department from using the more than 11,000 files seized in August from Mar-a-Lago as part of a criminal inquiry while the special master was reviewing them.
The Justice Department’s request to the appeals court was limited, asking only that the 100 or so documents with classified markings be excluded from the special master’s assessment and that its review of them be allowed to continue.
In a detailed and forceful 29-page decision, the appeals court agreed, staying Cannon’s order “to the extent it enjoins the government’s use of the classified documents and requires the government to submit the classified documents to the special master for review.” The decision, which was unsigned, was joined by Judges Britt Grant and Andrew Brasher, appointed by Trump, and Judge Robin Rosenbaum, appointed by President Barack Obama.
The ruling was skeptical of Trump’s arguments. “We cannot discern why plaintiff” — Trump — “would have an individual interest in or need for any of the 100 documents with classification markings,” the panel wrote.
The panel said Trump’s suggestion that he may have declassified the documents was legally irrelevant.
Trump has had decidedly mixed success in earlier efforts to keep his presidential and business records from law enforcement officials and congressional investigators.
In January, the Supreme Court refused his request to block the release of White House records held by the National Archives concerning the Jan. 6 attack on the Capitol, effectively rejecting his claim of executive privilege. The court let stand an appeals court ruling that Trump’s desire to maintain the confidentiality of presidential communications was outweighed by the need for a full accounting of the attack.
Only Justice Clarence Thomas noted a dissent. It later emerged that his wife, Virginia Thomas, had sent a barrage of text messages to the Trump White House urging efforts to overturn the 2020 election.
In 2020, while Trump was still president, the court ruled that he had no absolute right to block release of financial records sought by prosecutors in New York.
“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John Roberts wrote for the majority. Justices Thomas and Samuel Alito dissented.
The court returned that case to the lower courts for further proceedings. After they again ruled against Trump, he asked the justices to hear a new appeal in 2021.
In a decisive defeat, the court refused to hear the case, clearing the way for the release of the records. There were no noted dissents.