- Justice Department lawyers argued Trump has “no plausible claim of ownership” of the documents.
- Government lawyers also argued Trump hasn’t shown he be harmed by the review of records.
- Trump had asked the Supreme Court to review the case because of the unprecedented search.
WASHINGTON – The Justice Department urged the Supreme Court on Tuesday not to grant an emergency request from Donald Trump to review an appeals court decision dealing with the classified documents secreted from his Florida estate because he “has no plausible claim of ownership” of the records.
“Applicant’s inability to demonstrate irreparable injury is itself sufficient reason to deny the extraordinary relief he seeks in this Court,” government lawyers wrote.
The Justice Department also smacked at Trump’s repeated public remarks since the seizure that he had declassified the documents at issue.
“Despite asserting that classification status ‘is at the core of the dispute,’ in this case … (Trump) has never been represented in any of his multiple legal filings in multiple courts that he in fact declassified any documents – much less supported such a representation with competent evidence,” department lawyers wrote.
Trump asked the court Oct. 4 to review the 11th US Circuit Court of Appeals decision that allowed the department to continue its investigation of about 100 classified documents for possible crimes. Trump’s lawyers argued the documents should be part of a special master’s review of 11,000 records secreted at Mar-a-Lago.
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But government lawyers contend the Supreme Court should reject the request because Trump has little hope of winning and hasn’t shown he would suffer irreparable harm from the review.
“That limited relief imposes no harm – much less irreparable injury” on Trump, the department argued. Trump, the government said, “does not seriously argue otherwise.”
The government, however, could be harmed by having to disclose the classified records to the special master, “some of which reflect the highest levels of classification and extraordinarily restricted distribution,” according to department lawyers.
The filing is the latest in a complicated legal case intertwined in four venues of federal court: the Supreme Court, the 11th Circuit appeals court, US District Court in southern Florida and a special master’s court in Brooklyn.
“It’s the equivalent of a judicial pileup on the highway,” said Mark Chutkow, a former federal prosecutor now at Dykema law firm.
Justice Clarence Thomas, who oversees the 11th Circuit, could potentially grant Trump’s application himself, reject it or pass along the request to the full court for a vote. No deadline is set for any action.
Granting the application would mean Thomas thought there was a reasonable possibility four justices would vote to hear the case and a fair prospect five justices could potentially agree with Trump’s arguments on the merits, Chutkow said.
To win, Trump would have to show he would suffer irreparable harm if his request isn’t granted. That is a high hurdle with the special master’s review only expected to take two more months.
“The factors don’t really weigh on former President Trump’s favor on this,” Chutkow said.
The legal wrangling stems from the FBI’s Aug. 8 search of Mar-a-Lago. Trump initially asked US District Judge Aileen Cannon to authorize a special master to review the records reserved, to potentially withhold them from the Justice Department for attorney-client privilege or executive privilege.
Cannon assigned US District Judge Raymond Dearie as special master. She ordered the Justice Department to suspend its criminal investigation during the review. She gave Dearie a Dec. 16 deadlines to complete his review.
The Justice Department appealed part of her order to the 11th Circuit, arguing its criminal investigation of about 100 classified documents should continue and the documents shouldn’t be part of the special master’s review.
A three-judge panel of the 11th Circuit agreed with the department and Trump appealed to the Supreme Court.
Both sides have been aggressive in the civil case because of the potential for eventual criminal charges.
Chutkow, the former prosecutor, said the court battle illustrates Trump’s willingness to fight the unprecedented search, after paying a reported $3 million retainer to his lawyers.
Meanwhile, the Justice Department contends Trump has no ownership over any of the administration records, particularly the classified records.
If the special master received the classified documents, Trump could argue that he deserved to see them, too, which could complicate any potential criminal case, Chutkow said.
“There’s some multi-level chess being played here,” Chutnow said.
