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Trump Asks Supreme Court to Intervene in Review of Mar-a-Lago Records Trump Asks Supreme Court to Intervene in Review of Mar-a-Lago Records
(about 3 hours later)
WASHINGTON — Former President Donald J. Trump asked the Supreme Court on Tuesday to intervene in the litigation over documents marked as classified that the F.B.I. removed from his Florida estate, saying that an appeals court had lacked jurisdiction to rule on the matter. WASHINGTON — Former President Donald J. Trump asked the Supreme Court on Tuesday to intervene in the litigation over sensitive documents that the F.B.I. seized from his Florida estate, saying that an appeals court had lacked jurisdiction to remove them from a special master’s review.
Although the Supreme Court is dominated by six conservative justices, three of them appointed by Mr. Trump, it has rejected earlier efforts to block the disclosure of information about him, and legal experts said Mr. Trump’s new emergency application faced significant challenges. But Mr. 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 Mr. Trump’s handling of government records.
The new filing was largely technical, saying that the U.S. Court of Appeals for the 11th Circuit, in Atlanta, had not been authorized to stay aspects of a trial judge’s order appointing a special master in the case. The new filing was technical, saying that the U.S. Court of Appeals for the 11th Circuit, in Atlanta, had not been authorized to stay aspects of a judge’s order appointing a special master to review all materials that the F.B.I. had seized in its search of Mr. 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 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.
In September, a three-judge panel for the 11th Circuit, in Atlanta, unanimously granted a request from the Justice Department to block one aspect of a ruling from Judge Aileen M. Cannon, whom Mr. Trump had appointed to the Federal District Court for the Southern District of Florida. Judge Cannon had appointed a special master to review the more than 11,000 files seized in August from the former president’s residence, Mar-a-Lago, and forbade the Justice Department from using them as part of a criminal inquiry in the meantime. The court requested a response from the Justice Department by 5 p.m. next Tuesday.
Even were Mr. Trump 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 Mr. Trump, it has rejected earlier efforts to block the disclosure of information about him, and legal experts said Mr. Trump’s new emergency application faced significant challenges.
Stephen I. Vladeck, a law professor at the University of Texas, said Mr. Trump was pursuing a limited and curious litigation strategy in trying to reinstate part of a ruling from Judge Aileen M. Cannon of the Southern District of Florida.
Mr. Trump’s application, Professor 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 Judge 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 J. Dearie of Federal District Court for the Eastern District of New York, and laid out the parameters of his review, including identifying any documents that may be subject to attorney-client or executive privilege.
In removing the sensitive documents from Judge Cannon’s intervention, the appeals court blocked parts of her orders. But Mr. 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, Judge Cannon has modified her Sept. 15 order, discarding her instructions to Judge Dearie to assess the materials marked as classified, but if the Supreme Court ruled in Mr. 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 were 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 of the 11th Circuit unanimously granted a request from the Justice Department to block one aspect of a ruling from Judge 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.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 Judge 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 L. Brasher, appointed by Mr. Trump, and Judge Robin S. Rosenbaum, appointed by President Barack Obama.In a detailed and forceful 29-page decision, the appeals court agreed, staying Judge 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 L. Brasher, appointed by Mr. Trump, and Judge Robin S. Rosenbaum, appointed by President Barack Obama.
The ruling was skeptical of Mr. Trump’s arguments. “We cannot discern why plaintiff” — Mr. Trump — “would have an individual interest in or need for any of the 100 documents with classification markings,” the panel wrote.The ruling was skeptical of Mr. Trump’s arguments. “We cannot discern why plaintiff” — Mr. Trump — “would have an individual interest in or need for any of the 100 documents with classification markings,” the panel wrote.
The panel said Mr. Trump’s suggestion that he may have declassified the documents was legally irrelevant.The panel said Mr. Trump’s suggestion that he may have declassified the documents was legally irrelevant.
“Plaintiff suggests that he may have declassified these documents when he was president,” the panel said. “But the record contains no evidence that any of these records were declassified. And before the special master, plaintiff resisted providing any evidence that he had declassified any of these documents.”
The panel added that the question did not figure in its analysis. “The declassification argument is a red herring because declassifying an official document would not change its content or render it personal,” the decision said.
In an interview last month, Mr. Trump took an expansive view of his power to declassify documents, one at odds with past practice and judicial precedent.
“You can declassify just by saying ‘it’s declassified,’ even by thinking about it,” Mr. Trump told Sean Hannity on Fox News.
The new filing addressed Mr. Trump’s declassification powers obliquely.The new filing addressed Mr. Trump’s declassification powers obliquely.
“President Trump was still the president of the United States when any documents bearing classification markings were delivered to his residence in Palm Beach, Fla.,” it said. “At that time, he was the commander in chief of the United States. “As such, his authority to classify or declassify information bearing on national security flowed from this constitutional investment of power in the president.” “President Trump was still the president of the United States when any documents bearing classification markings were delivered to his residence in Palm Beach, Fla.,” it said. “At that time, he was the commander in chief of the United States. As such, his authority to classify or declassify information bearing on national security flowed from this constitutional investment of power in the president.”
Separate from Mr. Trump’s request to the Supreme Court, the Justice Department has also asked the 11th Circuit to broadly overturn Judge Cannon’s order installing a special master and the expansive powers she authorized for that arbiter.
Last week, the Justice Department asked the 11th Circuit to speed up its consideration of the remainder of the appeal. On Monday, the Trump legal team opposed that request.
Mr. Trump has had decidedly mixed success in earlier efforts to keep his presidential and business records from law enforcement officials and congressional investigators.Mr. 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 Mr. Trump’s desire to maintain the confidentiality of presidential communications was outweighed by the need for a full accounting of the attack.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 Mr. 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. Experts in legal ethics said that Justice Thomas’s connection to the case should have prompted him to disqualify himself from it. 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 Mr. 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.In 2020, while Mr. 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 G. Roberts Jr. wrote for the majority. Justices Thomas and Samuel A. Alito Jr. dissented.“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 G. Roberts Jr. wrote for the majority. Justices Thomas and Samuel A. Alito Jr. dissented.
The court returned that case to the lower courts for further proceedings. After they again ruled against Mr. Trump, he asked the justices to hear a new appeal in 2021.The court returned that case to the lower courts for further proceedings. After they again ruled against Mr. 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.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.