Trump goes to Supreme Court over Mar-a-Lago search and seizure of documents

CNN
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Former President Donald Trump asked the Supreme Court on Tuesday to intervene in the dispute over materials marked as classified that the FBI seized from his Mar-a-Lago estate this summer.

His emergency request with the Supreme Court is the latest example of the former President seeking to involve the justices in investigations that entangle him – at a time when the high court’s legitimacy in politically explosive cases is under intense scrutiny.

Trump is specifically asking the court to ensure that the more than 100 documents marked as classified are part of the special master’s review. The request, if granted, could bolster the former President’s attempt to challenge the search in court, as he has argued that he may have had a right, as a former president, to possess certain government documents, including documents potentially containing the country’s most sensitive secrets.

Trump, though, is not asking the Supreme Court to block the Justice Department from using the documents in its criminal probe into how materials from his White House were mishandled.

Justice Clarence Thomas – the recipient of Trump’s application because he oversees litigation coming from the circuit court that is handling the special master order appeal – gave the Justice Department a deadline of 5 p.m. Tuesday, October 11, to respond.

It remains to be seen whether allowing the special master – a third-party attorney tasked with reviewing evidence and filtering out privileged documents – to also access classified documents poses a real threat to the criminal investigation. Nor is it clear how sympathetic the high court will be to Trump’s claims, which rest largely on technical arguments about whether an appeals court had the authority to carve out the 100 documents from the review.

Late last year, Trump asked the justices to block the release of documents from his White House to congressional January 6, 2021, investigators. The high court rejected the request.

Trump’s emergency application to the Supreme Court comes after the 11th US Circuit Court of Appeals sided with the Justice Department and said that the department’s criminal investigation into the documents marked as classified could continue. The probe’s use of the records had been put on hold by a district judge in Florida, who granted a Trump request for a third-party review of the materials obtained in the Mar-a-Lago search. That appeals court is now considering whether to wipe away the rest of the special master order.

Trump is not asking the high court to restore the hold that Judge Aileen Cannon – a US district judge he nominated in 2020 – put on the Justice Department probe accessing the documents marked classified. But Trump wants those documents put back within the scope of the materials special master is reviewing.

In the new filing, Trump’s attorneys said that “any limit on the comprehensive and transparent review of materials seized in the extraordinary raid of a President’s home erodes public confidence in our system of justice.”

They also pushed back on the Justice Department’s claims that including the documents in the special master review would pose national security risks.

“The Government argued on appeal, without explanation, that showing the purportedly classified documents to Judge Dearie would harm national security,” Trump’s attorneys said, referring to senior Judge Raymond Dearie, who has been appointed special master in the dispute. The Trump team said that position “cannot be reconciled” with the DOJ saying it may want to show those same documents to a grand jury or to witnesses during interviews.

In filings before the lower court, the Justice Department had also cautioned that having Dearie’s review cover those documents would potentially allow members of Trump’s legal team to access them, including lawyers whom the department has signaled it views as possible witnesses in its investigation.

Cannon, the Justice Department previously told the 11th Circuit, had “ordered disclosure of highly sensitive material to a special master and to Plaintiff’s counsel—potentially including witnesses to relevant events—in the midst of an investigation, where no charges have been brought.”

The purpose of getting a special master to review those documents is not entirely fleshed out by Trump’s new filing with the Supreme Court. Trump nodded to Cannon’s assertion that he, as former president, would suffer “reputational harm of a decidedly different order of magnitude” if he was indicted based on evidence that had been unlawfully seized. That rationale was squarely rejected by the 11th Circuit, when it carved out…