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Justice Dept. asks Supreme Court to deny Trump request in Mar-a-Lago case

The former president’s lawyers sought the court intervention last week, saying the outside legal expert reviewing materials seized by the FBI should be allowed to examine classified items, too

Former President Donald Trump is seen on a monitor as he speaks at a rally in Mesa, Arizona on Sunday. (Joshua Lott/The Washington Post)
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The Justice Department asked the Supreme Court on Tuesday to deny a petition from Donald Trump’s attorneys in the Mar-a-Lago search case, arguing that allowing an outside arbiter to review the classified documents seized from Trump’s residence would “irreparably injure” the government and that as former president, Trump has no “plausible” claims of ownership over sensitive government materials.

It’s the latest turn in the department’s high-stakes investigation to determine whether the former president or his advisers mishandled national security secrets or hid or destroyed government records. Prosecutors have accused Trump’s team of not turning over highly sensitive government documents when asked and over the summer took the extraordinary step of executing a search warrant at his home and private club in South Florida.

Trump has said he is being treated unfairly by the Justice Department. Last week his legal team made a technical and narrow petition to the Supreme Court, asking the justices to reconsider a portion of an appeals court order that granted the Justice Department’s request to keep the classified documents separate from a review of seized material being conducted by the outside expert, known as a special master.

FBI agents seized more than 11,000 documents from Trump’s Florida residence and private club, including 103 with a variety of classification markings. The Washington Post has reported that authorities recovered one document that described a foreign government’s military defenses, including its nuclear capabilities.

The former president’s lawyers have argued that the appeals court lacked authority to prohibit the special master from reviewing the classified material. They asked the Supreme Court to allow the outside expert to examine those sensitive government documents.

The status of key investigations involving Donald Trump

The government’s response said Trump’s emergency request should fail because he has not shown how he would be harmed without the Supreme Court’s intervention or that the appeals court order was wrong.

“Because applicant has no plausible claims of ownership of or privilege in the documents bearing classification markings … he will suffer no harm at all from a temporary stay of the special master’s review of those materials while the government’s appeal proceeds,” Solicitor General Elizabeth B. Prelogar wrote in Tuesday’s response to the Supreme Court. “And applicant further undermined any claim that he is suffering irreparable injury from the stay by opposing the government’s motion to expedite the underlying appeal and urging that oral argument be deferred until ‘January 2023 or later.’”

In its September ruling, the U.S. Court of Appeals for the 11th Circuit also said the Justice Department could immediately resume using the classified documents in its criminal investigation — something a lower court had prohibited until the special master completed his review. While Trump’s lawyers requested that the Supreme Court allow the classified documents to be reviewed, they did not ask the justices to prohibit the government from using those materials in its criminal probe.

The Justice Department on Tuesday pushed back against the Trump lawyers’ arguments that the appeals court lacked jurisdiction to say what the special master could review, saying the panel of judges had authority to review the entire ruling appointing a special master, not just portions of it.

Trump and the Mar-a-Lago documents: A timeline

Prelogar noted that “the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief at all” and is appealing the Sept. 5 order. The Justice Department is expected to submit its appeal Friday.

When Trump first called for the appointment of a special master in late August, his lawyers argued that he has retained some executive privileges since leaving office, which the Justice Department has argued a former president can no longer assert. In Tuesday’s filing, the solicitor general noted that Trump’s lawyers have “abandoned” that argument in recent filings, suggesting that the former president’s attorneys realize he cannot invoke that privilege.

“In any event, any such invocation would necessarily yield to the government’s ‘demonstrated, specific need for evidence’ in its criminal investigation concerning the wrongful retention of those very documents and obstruction of its efforts to recover them,” the filing reads.

Elsewhere in its 32-page filing, the Justice Department traces the history of the criminal probe of the possible mishandling of government documents at Mar-a-Lago, accusing Trump’s team of likely obstruction of the investigation after a grand jury issued a subpoena in May requesting “any and all documents or writings in the custody or control of Donald J. Trump.”

“The FBI uncovered evidence that the response to the grand jury subpoena was incomplete, that additional classified documents likely remained at Mar-a-Lago, and that efforts had likely been undertaken to obstruct the investigation,” the filing says.

In response, investigators went to a judge to authorize a search warrant, which FBI agents executed at Mar-a-Lago on Aug. 8.

Trump has chosen a third of the Supreme Court’s nine justices, a body that has moved to the right on issues dear to conservatives, such as abortion, gun rights and religion. But the court has been a disappointment to the former president on issues that pertain to him personally.

The Supreme Court in July 2020 flatly rejected Trump’s bold claims of immunity from local law enforcement and congressional investigators. It turned aside multiple challenges to the 2020 election results brought by Trump and his allies. And post-presidency, the court turned down his request to keep certain White House documents from the congressional committee investigating the Jan. 6, 2021, riot at the U.S. Capitol, with only Justice Clarence Thomas indicating he would support Trump’s plea.