by Washington – The Supreme Court on Thursday rejected former President Donald Trump’s request to allow the independent arbitrator to review documents seized from his South Florida home access to a batch of about 100 classified documents recovered during the search.
The order from the high court keeps the subset of files off limits to the arbitrator, or special master, who is reviewing the more than 11,000 documents the FBI took from Mar-a-Lago. There was no disagreement.
The decision came in response to an emergency request by Trump to allow the special master to review the sensitive documents. The former president asked the Supreme Court to intervene in the legal dispute over the handling of sensitive government records after the US Court of Appeals for the 11th Circuit last month allowed federal investigators to regain access to the 103 records marked as classified.
The unanimous three-judge panel — two of the judges were appointed by Trump and one by former President Barack Obama — also limited the scope of the special master’s review and said the subset of sensitive materials should be kept separate from his review of about 11,000 files seized by FBI from Mar-a-Lago, Trump’s Palm Beach resort.
The Supreme Court’s order leaves intact the decision by the 11th Circuit regarding the special master’s ability to evaluate classified documents obtained in the August 8 investigation.
Trump’s lawyers have not asked the high court to bar federal investigators from continuing to use the classified documents in their ongoing criminal investigation into the former president’s handling of government records.
Instead, they argued in their filing that the 11th Circuit “lacked jurisdiction to review the special general warrant, which authorized the review of all materials seized from President Trump’s residence, including classified documents.” The lower court’s stay of US District Judge Ellen Cannon’s order “materially impairs the ongoing, time-sensitive work” of the special master, Trump’s lawyers said.
“Furthermore, any limit to the comprehensive and transparent review of materials seized in the surprise raid of a president’s home erodes public confidence in our justice system,” they continued.
The Justice Department opposed Trump’s emergency request and urged the court not to disturb the 11th Circuit’s order, arguing that his request involved “an unprecedented district court order limiting the use of highly classified executive branch records to an ongoing criminal investigation and directs the release of these records outside of the Executive Branch for special primary evaluation.”
“The district court appointed the special master to review the privilege claims and the return of personal property, but [Trump] has no reasonable claim to privilege or ownership of government records bearing distinctive markings,” Solicitor General Elizabeth Prelogar told the Supreme Court. “As the court of appeals recognized, [Trump] Therefore, it has no basis to require a special inspection of these records.’
Prelogr too said the former president has not acknowledged, nor sought to rebut, the 11th Circuit’s conclusion that Cannon’s order “was a serious and unwarranted intrusion on the Executive Branch’s authority to control the use and distribution of highly sensitive government records.”
The spat between Trump and the Justice Department stemmed from the Mar-a-Lago investigation by the FBI on Aug. 8 to recover records the former president brought with him from the White House to his South Florida property at the end of his presidency in January 2021. During the investigation, federal investigators took a total of about 11,000 documents, including 103 files that had classification markings, from a storage area and Trump’s office at the facility, according to the Justice Department.
In the wake of the investigation, Trump filed a lawsuit in federal district court in South Florida seeking the appointment of a special master to review all seized records for material that may be subject to claims of attorney-client or executive privilege.
The judge, Cannon, after all is granted Trump’s request and named Judge Raymond Dearie, who has long served on the U.S. District Court in Brooklyn, to serve as a special tutor. He also ordered federal investigators to stop using the materials seized in the criminal investigation into Trump.
The Justice Department asked the 11th Circuit to uphold a portion of Cannon’s order, seeking to regain access to the 103 documents marked classified. Federal prosecutors also separately asked the appeals court to review Cannon’s order appointing the special master and asked the court expedites its examination of the appeal. Trump, however, opposed the request for an expedited timeline.
The 11th Circuit agreed to hurry the Justice Department’s appeal, though on a slightly longer timeline than prosecutors had suggested.
In its Sept. 21 ruling allowing investigators to use the seized documents in their investigation, the 11th Circuit panel said it “cannot discern why [Trump] would be of individual interest or need any of the 100 classified documents.”
The unsigned opinion added by Justices Robin Rosenbaum, Britt Grant and Andrew Brasher also disputed Trump’s suggestion that he may have declassified some of the sensitive files before leaving office, noting that “the record contains no evidence that any of them files declassified”.
“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 make it personal,” the three-member panel wrote. “Even if we assume so [Trump] declassified some or all of the documents, that does not explain why he has a personal interest in them.”
But in its Supreme Court filing, Trump’s legal team continued to raise questions about the classified status of the 103 sensitive documents. His lawyers repeatedly referred to the material as “purportedly classified” and argued that Trump, as president, had “absolute authority” to declassify information.
“The administration’s position assumes that certain documents are in fact classified, giving President Trump no opportunity to claim otherwise,” they wrote. “This presumption lies at the heart of the controversy. Since President Trump has had absolute authority over classification decisions during his presidency, the current status of any disputed document cannot be determined solely by reference to the markings on that document.”
Prelogar, however, called Trump’s claims that he had the authority to declassify records while in office and his claim that the appointment of the special master was justified because the case involves a document storage dispute “false and irrelevant.”
Trump, he told the Supreme Court, “has never stated in any of his multiple legal filings in multiple courts that he actually declassified any document — much less supported such a showing with competent evidence.”
The Justice Department filing also took into account the former president’s contention that classified records should be part of a review under the Presidential Records Act (PRA), which Trump argued would entitle him to some property on the documents.
The former president’s reliance on the PRA is misplaced because he failed to comply with his PRA obligation to file the records at issue [the National Archives] first,” the filing claims. “As a result, the Archivist does not have custody of these records and the PRA’s procedures do not apply to them.”
Trump “has no reasonable claim of ownership or privilege in the classified documents” and therefore, “will be absolutely in no way harmed by the special master’s temporary stay to review these materials pending the government’s appeal.” Prelogar wrote.
The Supreme Court, now with a conservative majority of six justices that includes three members appointed by Trump, has been called upon to intervene in other document disputes that arose during and after Trump’s presidency, though it has not fared well.
In January the Supreme Court declined Trump’s offer to block the release White House documents to the House Select Committee investigating the January 6, 2021 attack on the US Capitol. Only Justice Clarence Thomas noted that he would have granted Trump’s request.
In 2020, while he was still president, the high court ruled that Manhattan’s top attorney could obtain troves of Trump’s business and tax records and said the president has no immunity from state criminal summonses. Only Thomas and Justice Samuel Alito dissented.
The Supreme Court sent the case back to the lower courts for further proceedings, and after suffering more losses, Trump again asked the high court to intervene. But the judges in February 2021 rejected his attempt to shield his financial records from Manhattan prosecutors, this time without controversy.
