Lawyers for former President Donald Trump have filed an appeal to the U.S. Supreme Court, aiming to overturn part of an 11th Circuit Court of Appeals ruling on the scores of classified documents that were retrieved from Mar-a-Lago by the Justice Department earlier this year.
The ruling from a three-judge panel of the 11th Circuit found that District Judge Aileen Cannon’s order to have special master Judge Raymond Dearie review the thousands of documents found at the Palm Beach, Florida, estate — including over 100 documents that were marked as classified — was partially improper.
Cannon’s decree had said the Department of Justice (DOJ) could not continue examining the classified documents due to Trump’s claims of executive privilege. But the 11th Circuit Court dismissed Cannon’s rule in its judgment in mid-September, noting that the documents belonged to the government, not Trump — and therefore a department of the federal government should be allowed to examine them.
“For our part, we cannot discern why [Trump] would have an individual interest in or need for any of the one-hundred documents with classification markings,” the panel of judges said in their ruling on September 21.
But Trump’s lawyers sought to have the Supreme Court overturn that ruling on Tuesday, arguing, in part, that the 11th Circuit Court of Appeals didn’t have legal standing on the issue.
“The Eleventh Circuit lacked jurisdiction to review, much less stay, an interlocutory order of the District Court providing for the Special Master to review materials seized from President Trump’s home,” the legal brief that Trump’s team filed on Tuesday stated.
That argument is inconsistent with how the appellate system works, some observed.
“If the appeals court didn’t have jurisdiction over a court in its district, then I am confused,” Carol Leonnig, a reporter for The Washington Post, said in an interview with MSNBC.
The appeal also includes the baseless claim that the search of Trump’s home for government documents was wholly political. Trump’s lawyers described the “unprecedented circumstances” as being an “investigation of the Forty-Fifth President of the United States by the administration of his political rival and successor.”
Notably, the National Archives and Records Administration (NARA) tried for a full year after Trump left the White House to retrieve the records, to no avail. Only after NARA threatened to get Congress involved did Trump relent and allow the agency to retrieve some documents in January. After review of those documents, NARA discovered that some were marked as classified, prompting them to involve the DOJ.
The DOJ then presented Trump with a subpoena and retrieved more records from Mar-a-Lago in June. The department also made Trump’s legal counsel affirm that no more classified documents were being kept at the property, which they did on Trump’s behalf. After evidence surfaced in August showing that documents remained at Mar-a-Lago, however, the FBI executed a search warrant at the estate.
President Joe Biden has said that he didn’t know anything about the search warrant prior to its execution.
Interestingly, the brief from Trump’s legal team does not ask the Supreme Court to halt the DOJ’s examination of classified documents. Rather, it asks that special master Dearie be able to continue examining the documents to determine if Trump’s executive privilege claims are justified.
Some have speculated that Trump is simply trying to get his hands on copies of the classified material.
“Trump wants his own copy of the 103 classified documents, pure and simple,” said legal analyst Lisa Rubin. “And telling the Supreme Court that an appeals court had no jurisdiction to stop Dearie’s review of those records is their vehicle for getting them.”
Many legal experts have noted early signs that members of the High Court don’t view the matter as urgent. Justice Clarence Thomas, who oversees the 11th Circuit Court of Appeals, set a deadline of one week for the department to respond to Trump’s legal filing, for example.
“Justice Thomas is giving DOJ a week to respond. That’s another week where [DOJ investigators] can keep working,” noted former federal prosecutor Joyce Alene. “That’s a signal Thomas doesn’t view this as a matter that should be pushed along for a fast decision.”
Trump’s appeal appears destined to fail, said University of Texas at Austin Law School professor Steve Vladeck.
“This is what’s most conspicuously absent from his application: Any argument about how the stay” from the 11th Circuit court, “by itself, is harming Trump in a way that can’t be ameliorated later,” Vladeck tweeted. “Without meeting that criteria, Trump can’t make out the *procedural* case for the relief he’s seeking.”