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GOP attorneys general back Trump in court fight over Mar-a-Lago documents

Texas Attorney General Ken Paxton (R) speaks in Washington on Jan. 6, 2021, the day Trump supporters attacked the Capitol. (Jacquelyn Martin/AP)

Texas’s Ken Paxton and 10 other GOP state attorneys general came to the defense of former president Donald Trump on Tuesday in his legal fight over documents the FBI seized last month, filing an amicus brief in a federal appellate court that argued the Biden administration could not be trusted.

In a 21-page document that repeated numerous right-wing talking points but that experts said broke little new legal ground, the officials accused the Biden administration of “ransacking” Mar-a-Lago, the Florida home of the former president, during an Aug. 8 court-authorized FBI raid and of politicizing the Justice Department.

The search, which stemmed from an investigation into whether Trump and his associates improperly took and held on to secret government papers, resulted in the discovery of numerous sensitive documents. Trump’s attorneys then asked for a special master to examine all of the approximately 11,000 seized documents and exclude those that may be covered by attorney-client or executive privilege. U.S. District Judge Aileen M. Cannon agreed to the request and barred criminal investigators from using the material until the review is completed. The Justice Department contested parts of Cannon’s decision and asked the Atlanta-based U.S. Court of Appeals for the 11th Circuit to override her.

The Post's Perry Stein explains how a special master will identify if any documents seized by the FBI are protected by attorney-client or executive privilege. (Video: The Washington Post)

The amicus brief urges the appellate court to deny the appeal. “Given Biden’s track record, combined with his rhetoric demonizing anyone he disagrees with, the courts must be on high alert to the ways in which [the Justice Department] may abuse its power to punish President Donald Trump,” Paxton, whose office led the effort, said in a statement Tuesday.

Special master prods Trump lawyers: ‘You can’t have your cake and eat it’

The Utah Attorney General’s Office confirmed that the state has joined the amicus brief but declined to comment further. Representatives of the other attorneys general did not respond to requests for comment.

Officials at the Department of Justice could not be immediately reached late Tuesday.

Amicus briefs are documents filed by parties not directly involved in a legal contest to inform judges of additional, relevant information. But the one filed by the attorneys general reads more like a political document than a legal brief, legal experts said.

The attorneys general from Texas, Florida, Indiana, Kentucky, Mississippi, Missouri, Montana, Louisiana, South Carolina, Utah and West Virginia do not elaborate on the core legal issues Trump is contesting — executive privilege and whether the documents found at his Florida estate were actually classified — according to John Yoo, a legal expert on executive privilege who reviewed the brief at The Washington Post’s request.

The term “executive privilege” is mentioned only once in the filing, and the text doesn’t provide new information that could help determine whether the government documents found at Trump’s property are classified. The privilege is usually invoked to shield executive branch communications from Congress or the courts, not from an agency within the branch itself, such as the Justice Department.

Instead, the GOP officials list a wide array of grievances against the Biden administration, including how it handled immigration law enforcement and its response to the coronavirus pandemic, that do not appear directly related to the case. They argue that the administration’s “questionable conduct” in policymaking and litigation means courts should treat the Justice Department’s appeal with caution.

The officials who signed the brief are “really good lawyers,” said Yoo, who worked in the George W. Bush administration’s Justice Department. But the brief is a political document that “just doesn’t address any of the issues at stake,” he said.

Analysis: A Mar-a-Lago brief by GOP attorneys general is less than meets the eye

Paxton has previously used his office to intervene in courts on behalf of Trump and other right-wing causes. In 2020, Texas attempted to sue Georgia, Michigan, Wisconsin and Pennsylvania over the 2020 presidential election, in a long-shot attempt to overturn Joe Biden’s victory. The Supreme Court dismissed that case.

The brief is “of course a political stunt,” said Jon D. Michaels, a law professor at the University of California at Los Angeles who studies presidential powers. “The officials are playing to the fierce MAGA bases in their states,” he said.

Paxton’s office could not be immediately reached for comment late Tuesday.

Perry Stein and Devlin Barrett contributed to this report.

The Jan. 6 insurrection

Congressional hearings: The House committee investigating the attack on the U.S. Capitol held a series of high-profile hearings to share its findings with the U.S. public. What was likely to be the panel’s final public hearing has been postponed because of Hurricane Ian. Here’s a guide to the biggest hearing moments so far.

Will there be charges? The committee could make criminal referrals of former president Donald Trump over his role in the attack, Rep. Liz Cheney (R-Wyo.) said in an interview.

What we know about what Trump did on Jan. 6: New details emerged when Hutchinson testified before the committee and shared what she saw and heard on Jan. 6.

The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.

Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6.

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