Attorneys for former president Donald Trump have asked the US Supreme Court to reinstate a Florida judge’s order which effectively blocked the FBI and Department of Justice from using classified documents seized during the 8 August search of his home to further the criminal investigation against him.
In an application with the high court filed late Tuesday, Mr Trump’s legal term asked Justice Clarence Thomas — the Supreme Court justice responsible for overseeing the 11th Circuit Court of Appeals — to vacate a three-judge panel’s order staying Judge Aileen Cannon’s order enjoining the federal government from using “any of the materials seized from Plaintiff’s residence on August 8, 2022, for criminal investigative purposes” with respect to 103 documents bearing classification markings.
The appeals court allowed the rest of the roughly 11,000 documents seized from Mr Trump’s Mar-a-Lago property to be withheld while a special master reviews them to determine whether any can be shielded by attorney-client or executive privilege.
In the 22 September opinion, the three-judge panel consisting of Circuit Judges Robin Rosenbaum, Britt Grant and Andrew Brasher had said they agreed with the government’s argument that Judge Cannon — who was named to the bench in 2020 by Mr Trump — “likely erred in exercising ... jurisdiction to enjoin the United States’s use of the classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review”.
“For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings,” they said.
The judges added that Mr Trump “has not even attempted to show that he has a need to know the information contained in the classified documents”.
“Nor has he established that the current administration has waived that requirement for these documents. And even if he had, that, in and of itself, would not explain why Plaintiff has an individual interest in the classified documents,” they said.
According to legal experts, those classified documents could represent a significant legal peril for Mr Trump because the Department of Justice is investigating whether he violated laws against improperly handling or retaining national defence information.
For his part, Mr Trump has repeatedly claimed he declassified the documents at issue, but his attorneys have declined to say so in court and Judge Cannon has intervened in the special master’s process to prevent the Trump team from having to say so.
The panel also noted that Mr Trump’s lawyers have provided “no evidence that any of these records were declassified” despite suggestions by the ex-president that he may have done so, and resisted making such an argument in a hearing with the special master charged with reviewing the documents, New York-based federal judge Raymond Dearie, at a hearing in Brooklyn last month.
“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. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them,” they said.
But in their application for the Supreme Court to reinstate Judge Cannon’s order, Mr Trump’s attorneys say the 11th Circuit panel had no jurisdiction to reverse or stay the order because it was not a “final order”.
“The appointment of a special master is interlocutory and not immediately appealable ... Thus, although appointment of a special master ordinarily requires some action by the parties, this does not transform it from a procedural order into an immediately appealable injunction,” they wrote.
Mr Trump has routinely appealed cases which have presented legal jeopardy for him to the high court, which includes three justices he named to the bench during his term in the White House.
But despite appointing a full third of the highest court in the US, he has not had much success there in recent years.
The court rejected his last-minute challenge to 2020 election results, paving the way for President Joe Biden’s inauguration in January 2021.
It also rejected his claim of executive privilege over records sought by the House January 6 select committee after he sued to prevent the panel from obtaining documents in the custody of the National Archives.