Former President Donald Trump has asked the Supreme Court to intervene in the dispute over materials marked as classified the FBI seized from his Mar-a-Lago estate this summer.
His emergency request with the Supreme Court is the latest example of the former President seeking to involve the justices in investigations that entangle him – at a time when the high court’s legitimacy in politically explosive cases is under intense scrutiny.
Trump is specifically asking the court to ensure that the more than 100 documents marked as classified are part of the special master’s review. The request, if granted, could bolster the former President’s attempt to challenge the search in court and have the documents returned to him.
Trump’s emergency application to the Supreme Court comes after the 11th US Circuit Court of Appeals sided with the Justice Department and said that the department’s criminal investigation into the documents marked as classified could continue. The probe’s use of the records had been put on hold by a district judge in Florida, who granted a Trump request for a third-party review of the materials obtained in the Mar-a-Lago search.
The appeal puts the political spotlight back on to the Supreme Court.
Earlier this year, he asked the justices to block the release of documents from his White House to congressional US Capitol attack investigators. The high court rejected the request.
The Supreme Court, with its current conservative majority, is already viewed by the American public as partisan following a string of controversial rulings this year, including overturning Roe v. Wade, and will likely make the Mar-a-Lago search even more of an issue in the upcoming congressional mid-term elections.
Trump appointed three of the current justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
In addition, the justice who receives Supreme Court emergency requests out of Florida is conservative Clarence Thomas, although he is almost guaranteed to refer the petition to the full court to consider.
Thomas’ wife, conservative activist Ginni Thomas, promoted efforts to overturn the 2020 presidential election and has testified before the House select committee investigating the January 6, 2021, US Capitol attack.
CNN senior legal analyst Elie Honig said the appeal is intended to delay the Justice Department’s investigation into the former President, if possible.
“This is part of the delay strategy,” Honig said on CNN’s “The Lead with Jake Tapper,” noting Trump lost at the appeals court. “So either he accepts that loss and those documents don’t go to the special master and they go right over to DOJ, or his only remaining recourse is to try to get the Supreme Court to take it, and that’s the course he’s taking now.”
Honig said it’s a “close call” if the court will take up the case.
“The Supreme Court typically likes to stay out of messy, political disputes,” Honig said. “On the other hand, when it comes to sort of unique, novel issues of constitutional law, of separation of power, of issues like executive privilege and classification of documents, that’s sort of why the Supreme Court exists – to adjudicate those high level disputes between branches that involve sort of core constitutional principles.”
Trump is not asking the high court to restore the hold that Judge Aileen Cannon – a US district judge he appointed in 2020 – put on the Justice Department probe accessing the documents marked classified.
But Trump wants those documents included in what the special master is reviewing, after the appeals court exempted them from the special master process.
In the new filing, Trump’s attorneys said “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.”
They also pushed back on the Justice Department’s claims that including the documents in the special master review would pose national security risks.
“The Government argued on appeal, without explanation, that showing the purportedly classified documents to Judge Dearie would harm national security,” Trump’s attorneys said, referring to senior Judge Raymond Dearie, who has been appointed special master in the dispute. The Trump team said that position “cannot be reconciled” with the DOJ saying it may want to show those same documents to a grand jury or to witnesses during interviews.
This story is breaking and will be updated.