Donald Trump asks for SC intervention in classified documents case

The new filing is largely technical

Former President Donald Trump asked the Supreme Court on Tuesday to intervene in litigation over documents marked as classified that the FBI removed from his Florida estate, saying that an appeals court had lacked jurisdiction to rule on the matter.

Although the Supreme Court is dominated by six conservative justices, three of them appointed by Trump, it has rejected earlier efforts to block the disclosure of information about him, and legal experts said Trump’s new emergency application faces significant challenges.

The new filing was largely technical, saying that the 11th US Circuit Court of Appeals, in Atlanta, had not been authorized to stay aspects of a trial judge’s order appointing a special master in the case.

“The 11th Circuit lacked jurisdiction to review the special master order, which authorized the review of all materials seized from President Trump’s residence, including documents bearing classification markings,” the application said.

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In September, a three-judge panel for the 11th Circuit unanimously granted a request from the Justice Department to block one aspect of a ruling from Judge Aileen Cannon, whom Trump had appointed to the US District Court for the Southern District of Florida. Cannon had appointed a special master to review the more than 11,000 files seized in August from the former president’s residence, Mar-a-Lago, and forbade the Justice Department from using them as part of a criminal inquiry in the meantime.

The Justice Department’s request to the appeals court was limited, asking only that the 100 or so documents with classified markings be excluded from the special master’s assessment and that its review of them be allowed to continue.

In a detailed and forceful 29-page decision, the appeals court agreed, staying Cannon’s order “to the extent it enjoins the government’s use of the classified documents and requires the government to submit the classified documents to the special master for review.” The decision, which was unsigned, was joined by Judges Britt Grant and Andrew Brasher, appointed by Trump, and Judge Robin Rosenbaum, appointed by President Barack Obama.

The ruling was skeptical of Trump’s arguments. “We cannot discern why plaintiff” — Trump — “would have an individual interest in or need for any of the 100 documents with classification markings,” the panel wrote.

The panel said Trump’s suggestion that he may have declassified the documents was legally irrelevant.

“Plaintiff suggests that he may have declassified these documents when he was president,” the panel said. “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 panel added that the question did not figure in its analysis. “The declassification argument is a red herring because declassifying an official document would not change its content or render it personal,” the decision said.

In an interview last month, Trump took an expansive view of his power to declassify documents, one at odds with past practice and judicial precedent.

“You can declassify just by saying ‘it’s declassified,’ even by thinking about it,” Trump told Sean Hannity on Fox News.

The new filing addressed Trump’s declassification powers obliquely.

“President Trump was still the president of the United States when any documents bearing classification markings were delivered to his residence in Palm Beach, Fla.,” it said. “At that time, he was the commander in chief of the United States. As such, his authority to classify or declassify information bearing on national security flowed from this constitutional investment of power in the president.”

Trump has had decidedly mixed success in earlier efforts to keep his presidential and business records from law enforcement officials and congressional investigators.

In January, the Supreme Court refused his request to block the release of White House records held by the National Archives concerning the Jan. 6 attack on the Capitol, effectively rejecting his claim of executive privilege. The court let stand an appeals court ruling that Trump’s desire to maintain the confidentiality of presidential communications was outweighed by the need for a full accounting of the attack.

Only Justice Clarence Thomas noted a dissent. It later emerged that his wife, Virginia Thomas, had sent a barrage of text messages to the Trump White House urging efforts to overturn the 2020 election. Experts in legal ethics said that Justice Thomas’ connection to the case should have prompted him to disqualify himself from it.

In 2020, while Trump was still president, the court ruled that he had no absolute right to block release of financial records sought by prosecutors in New York.

“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John Roberts wrote for the majority. Justices Thomas and Samuel Alito dissented.

The court returned that case to the lower courts for further proceedings. After they again ruled against Trump, he asked the justices to hear a new appeal in 2021.

In a decisive defeat, the court refused to hear the case, clearing the way for the release of the records. There were no noted dissents.