The Biden administration on Tuesday urged the Supreme Court to reject former President Donald Trump’s request to reinstate a district judge’s order that would allow a special master to review about 100 classified documents seized from Trump’s home. The Justice Department called Judge Aileen Cannon’s order, which a federal appeals court put on hold last month, “unprecedented.”
The FBI seized 11,000 documents, including over 100 marked as classified, in an Aug. 8 search of Trump’s Mar-a-Lago resort in Palm Beach, Florida. After Cannon granted Trump’s request to appoint a special master to review the documents and barred the government from using any of the documents as part of a criminal investigation, the Justice Department appealed to the U.S. Court of Appeals for the 11th Circuit.
In an unsigned opinion on Sept. 21, a three-judge panel – which included two judges appointed by Trump – agreed to freeze two parts of Cannon’s order: one part requiring the DOJ to allow the special master to review the classified documents and another part barring the DOJ from using the classified documents in a criminal investigation.
Trump came to the Supreme Court last week, asking the justices to revive the portion of Cannon’s order that required the government to turn over the documents marked as classified.
In a 32-page filing, Solicitor General Elizabeth Prelogar argued that the justices should leave the 11th Circuit’s ruling, which she characterizes as a “modest partial stay,” in place. Trump has not even tried to explain, she noted, why he would be permanently injured – one criteria for emergency relief – if the special master does not have access to the classified documents for a short time.
And in any event, Prelogar continued, Trump also is not entitled to emergency relief because he has not shown that the court of appeals was clearly wrong in putting part of Cannon’s order on hold. Although Cannon appointed Senior U.S. District Judge Raymond Dearie, the special master, to determine whether any of the seized documents were protected by executive privilege or attorney-client privilege or belonged to Trump, Trump “has no plausible claim of privilege in or ownership of government records bearing classification markings,” Prelogar wrote.
Trump’s contention that the 11th Circuit lacked the power to block the special master’s review of the classified documents also falls short, Prelogar argued, for a variety of independent reasons – including that an order to turn over classified documents can be immediately reviewed, because otherwise the appeal of the order “will likely be futile once disclosure has occurred.” But in any event, Prelogar concluded, the court of appeals was not clearly wrong when it determined that it did have the power to intervene.
Trump’s legal team can file a response to the DOJ brief. Once it does, the court could act on his request at any time.
This post is also published on SCOTUSblog.