Attorneys for former President Donald Trump on Tuesday asked the Supreme Court to step into the legal fight over the classified documents seized during an FBI search of his Florida estate.
The action from the former president's legal team comes after a federal appeals court ruled that the Justice Department's probe into the classified documents could continue.
The Trump team asked the court to overturn a lower court ruling and permit a special master to review the roughly 100 documents with classified markings that were taken in the Aug. 8 search.
A three-judge panel from the Atlanta-based U.S. Court of Appeals for the 11th Circuit last month limited the special master’s review to the much larger tranche of non-classified documents. The judges, including two Trump appointees, sided with the Justice Department, which had argued there was no legal basis for the special master to conduct his own review of the classified records.
But Trump’s lawyers said in their application to the Supreme Court that it was essential for the special master to have access to the classified records to “determine whether documents bearing classification markings are in fact classified, and regardless of classification, whether those records are personal records or Presidential records.”
“Since President Trump had absolute authority over classification decisions during his Presidency, the current status of any disputed document cannot possibly be determined solely by reference to the markings on that document,” the application states.
It says that without the special master review, “the unchallenged views of the current Justice Department would supersede the established authority of the Chief Executive.” An independent review, the Trump team says, ensures a “transparent process that provides much-needed oversight.”
The FBI says it seized roughly 11,000 documents, including about 100 with classification markings, during its search. The Trump team asked a judge in Florida, Aileen Cannon, to appoint a special master to do an independent review of the records.
Cannon subsequently assigned a veteran Brooklyn judge, Raymond Dearie, to review the records and segregate those that may be protected by claims of attorney-client privilege and executive privilege. She also barred the FBI from being able to use the classified documents as part of its criminal investigation.
The Justice Department appealed, prompting the 11th Circuit to lift Cannon’s hold on investigators’ ability to scrutinize the classified records. The appeals court also ruled that the department did not have to provide Dearie with access to the classified records.
Trump's team charged that "the unprecedented circumstances presented by this case ... compelled the District Court to acknowledge the significant need for enhanced vigilance and to order the appointment of a Special Master to ensure fairness, transparency, and maintenance of the public trust."
"That appointment order is simply not appealable on an interlocutory basis and was never before the Eleventh Circuit," Trump's lawyers wrote in the filing. "Nonetheless, the Eleventh Circuit granted a stay of the Special Master Order, effectively compromising the integrity of the well-established policy against piecemeal appellate review and ignoring 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 filing reads. "Moreover, 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."
A three-judge panel from the Eleventh Circuit Court of Appeals last month limited the special master's review to the much larger tranche of non-classified documents.
The appeal was directed to Justice Clarence Thomas, who is the Circuit Justice for the Eleventh Circuit, overseeing emergency matters from Florida and several other Southern states. Thomas can act on his own or, as is usually done, refer the emergency appeal to the rest of the court.
As president, Trump appointed three justices to the high court – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – shifting its ideological balance to a 6-3 conservative majority.