The Justice Department (DOJ) asked the Supreme Court Tuesday to reject former President Donald Trump’s bid to have the court intervene in a dispute over documents seized from his Mar-a-Lago resort two months ago.
The 45th president last week filed an emergency request asking the high court to lift an appeals court decision preventing a special master from reviewing 100 documents that were allegedly marked classified. Those documents were among some 11,000 records that FBI agents seized on Aug. 8.
While urging the Supreme Court to reject Trump’s petition, DOJ officials wrote (pdf) the former president “certainly cannot establish the clear error required to justify the relief he seeks—particularly because he does not acknowledge, much less attempt to rebut, the court of appeals’ conclusion that the district court’s order was a serious and unwarranted intrusion on the Executive Branch’s authority.”
On Aug. 22, Trump filed a petition to restrict the DOJ’s access to the records as it pursues an investigation into whether he retained classified documents after departing the White House in January 2021. A federal judge in Florida sided with Trump’s attorneys and appointed a special master, retired Judge Raymond Deare, to review the documents.
His lawyers previously told the Supreme Court that Dearie should be able to look into the records to see whether the FBI-seized materials “bearing classification markings are in fact classified, and regardless of classification, whether those records are personal records or presidential records.”
Further, they wrote that the DOJ is trying “to criminalize a document management dispute and now vehemently objects to a transparent process that provides much-needed oversight,” his lawyers added.
The former president has maintained on social media and in interviews that he declassified those documents and accused the FBI and DOJ of acting on Democrats’ behalf to target a political opponent and a possible 2024 presidential candidate. When he was president, he enjoyed broad powers of declassification that needed no formal process, Trump argued in a Fox News interview last month.
“Different people say different things but as I understand it, if you’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it,” he said.
“Because you’re sending it to Mar-a-Lago or wherever you’re sending it. There doesn’t have to be a process. There can be a process, but there doesn’t have to be,” the former president asserted. “You’re the president … you make that decision” on whether to declassify, he said.
And a former aide, Kash Patel, who hosts Epoch TV’s “Kash’s Corner,” said that the documents likely pertained to the FBI Crossfire Hurricane investigation into whether Trump colluded with the Russian government. An FBI special counsel, Robert Mueller, found no collusion after a several-year-long investigation.
Appeals Court Ruling
The Atlanta-based 11th U.S. Circuit Court of Appeals on Sept. 21 put on hold a decision by U.S. District Judge Aileen Cannon, who is presiding over Trump’s lawsuit. Cannon had temporarily barred the Justice Department from examining the seized documents until the special master she appointed, Judge Raymond Dearie, had identified any that could be considered privileged.
Cannon had tasked Dearie to review all of the seized records, including classified ones, to locate anything subject to attorney-client confidentiality or executive privilege, described legal doctrine that shields some White House communications from disclosure, making it off limits to investigators.
The three-judge 11th Circuit panel gave the department access to the documents marked as classified for its ongoing criminal investigation, and prevented Dearie from vetting those, noting the importance of limiting access to classified information and ensuring the department’s probe would not be harmed.
Cannon also blocked the DOJ from reviewing all of the seized materials in connection to its criminal investigation, and she later named Dearie to review the records.
In February, the National Archives and Records Administration (NARA) said Trump took some government records with him to Mar-a-Lago. The agency spent months negotiating with the former president before Trump handed over 15 boxes of materials in early 2022.
The DOJ investigation was triggered after NARA staffers discovered presidential records in the boxes, according to then-Archivist David Ferriero in a letter to Rep. Carolyn Maloney (D-N.Y.) in February. DOJ court filings indicated that other records were found when DOJ and FBI agents visited Trump’s home in June.
Reuters contributed to this report.