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Trump asks Supreme Court to intervene in Mar-a-Lago search case

The former president asked the high court to put classified documents back into an independent review being conducted by a federal judge

Former president Donald Trump speaks at a rally in Warren, Michigan on Oct. 1. (Sarah Rice/For The Washington Post)
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Former president Donald Trump’s lawyers asked the Supreme Court on Tuesday to intervene in the Mar-a-Lago documents-seizure case, saying the outside legal expert appointed to review the materials should be allowed to examine roughly 100 classified items found during the search.

The petition came after a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit granted the Justice Department’s request to keep the classified documents separate from a review of documents being conducted by the outside expert, called a special master. Authorities have launched a high-stakes investigation to determine if the former president or his advisers mishandled national security secrets, or hid or destroyed government records.

By taking the case to the Supreme Court, Trump gets another chance to publicly argue that he is being treated unfairly by the Justice Department, and if he succeeds, it could stymie or stall the ongoing investigation into his conduct.

In Trump White House, classified records routinely mishandled, aides say

In last month’s appeals court ruling, the panel — two judges nominated by Trump and one by President Barack Obama — rejected Trump’s argument that the classified documents seized from Mar-a-Lago on Aug. 8 might be his property, rather than the government’s. The appeals court also blocked an earlier order by U.S. District Judge Aileen M. Cannon that the special master review the documents to see if they should be shielded from investigators because of executive or attorney-client privilege.

As part of the 11th Circuit’s decision, the panel allowed the criminal investigation to use the seized classified documents in the ongoing investigation, something Cannon barred while the special master conducted his review. Trump’s filing to the Supreme Court seeks only to reverse the appeals court’s ruling on the special master’s access to the documents, not the part of the decision concerning the investigation.

However, if the high court agreed with the Trump lawyers’ reasoning that the 11th Circuit decision weighed in on legal issues that were not properly the subject of an appeal, such a decision could restore Cannon’s previous restriction on the criminal investigation.

In ruling for Trump, low-profile judge Aileen Cannon invites scrutiny

Trump’s lawyers argue in their filing that the appeals court decision ignores “the District Court’s broad discretion without justification. This unwarranted stay should be vacated as it impairs substantially the ongoing, time-sensitive work of the Special Master.”

The petition was filed with Justice Clarence Thomas, who oversees emergency requests from the 11th Circuit. Thomas instructed the Justice Department to file a response to the court by Oct. 11. A Justice Department spokesman declined to comment on the new filing. It’s unclear how long the Supreme Court’s review of the matter will take or if it will have any measurable impact on the ongoing investigation.

In the 11th Circuit decision at issue, the judges concluded they could not see a reason why Trump “would have an individual interest in or need for any of the one-hundred documents with classification markings.”

The legal fight arose out of a court-approved search of Trump’s residence in Florida, a storage space and office space used by the former president. Agents hauled away roughly 11,000 documents, including 103 with a variety of classification markings.

About two weeks later, Trump’s lawyers filed court papers seeking to have a special master appointed to review the seized documents, arguing that Trump had important executive privilege and attorney-client privilege concerns that the investigators had gone too far.

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)

Cannon reviewed and granted that request, over objections from the Justice Department, which then appealed to the 11th Circuit.

The appeals court judges — Robin S. Rosenbaum, Britt Grant and Andrew L. Brasher — said the order was not a decision on the merits of the case, but simply agreement with the Justice Department that Cannon’s order went too far.

The lower court “abused its discretion in exercising jurisdiction … as it concerns the classified documents,” the panel wrote in a 29-page opinion. The appeals court panel only ruled on some of the parameters of the special master’s work. Cannon has appointed Raymond J. Dearie, a longtime federal judge in New York City, to serve as special master.

Trump lawyer declined in February to say all documents had been returned

The appeals panel rejected the notion that Trump may have somehow changed the classification of the documents, some of which Justice Department lawyers say require the highest clearance to access. Moreover, the panel said, that was immaterial.

“Plaintiff [Trump] suggests that he may have declassified these documents when he was President. 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 judges wrote. “In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.”

In the Supreme Court petition, Trump’s lawyers suggest that a part of their motive for seeking a special master review is so that he or his legal team can review the 103 documents marked classified that were seized on Aug. 8.

“Since any purported ‘classified records’ may be Presidential records, President Trump … has an absolute right of access to same under the Presidential Records Act,” the filing argues. “Accordingly, President Trump (and, by extension, the Special Master) cannot in any event be denied access to those documents.”

On a Fox News appearance last month, Trump offered a novel interpretation of the process unsupported by precedent.

“I declassified the documents when they left the White House,” Trump said. “There doesn’t have to be a process as I understand it. You’re the president of the United States, you can declassify … even by thinking about it.”

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 January 2021 riot at the U.S. Capitol, with only Thomas indicating he would support Trump’s plea.