The United States Justice Department asked the Supreme Court on Tuesday to reject former President Donald Trump’s request to re-authorize an independent arbiter to vet classified records seized from his Florida home.
On October 4, Trump had asked the Supreme Court to overturn a federal appeals court judgment that barred a special master from scrutinizing more than 100 secret documents among the nearly 11,000 items collected by FBI agents at his Mar-a-Lago club in Palm Beach on August 8.
On Tuesday, the Justice Department asked the Supreme Court to deny Trump’s request because he has not pointed out a “clear mistake” in the lower court’s ruling or demonstrated how it had hurt him.
Trump went to court on August 22 to limit Justice Department access to the documents. The Justice Department continues to conduct a criminal investigation into his handling of government records, some of which are classified as highly classified, including top secret, at Mar-a-Lago after leaving office in January 2021. Trump urged a court to appoint a special master to evaluate the seized documents and see whether any might be declared privileged and potentially withheld from investigators.
Trump selected three justices to the Supreme Court’s conservative majority of 6-3. On September 21, the 11th U.S. Circuit Court of Appeals in Atlanta stayed a judgment by U.S. District Judge Aileen Cannon. Cannon had temporarily banned the Justice Department from inspecting the confiscated papers until the special master she appointed, Judge Raymond Dearie, found any that would be considered confidential.
Cannon had directed Dearie to go through all of the seized documents, including classified ones, for anything that might be subject to attorney-client confidentiality or executive privilege – a legal doctrine that protects some White House communications from disclosure – and thus off limits to investigators.
The 11th Circuit panel of three judges granted the department access to confidential materials for its continuing criminal investigation. It barred Dearie from screening them, emphasizing the necessity of restricting access to classified information and ensuring the agency’s probe was not jeopardized.
The Justice Department said in a filing on Tuesday that Trump’s request should be denied. They asked for the denial because he failed to demonstrate that the 11th Circuit erred in concluding that Cannon’s order constituted an unwarranted and serious intrusion on the executive branch’s authority to handle extremely sensitive government records.
Trump’s attorneys earlier told the Supreme Court that Dearie should be permitted to judge whether papers bearing classification marks are classified and, regardless of classification, whether such records are personal or presidential records. According to Trump’s lawyers, the Justice Department has attempted to criminalize a document management disagreement and is now passionately opposed to a public procedure that offers much-needed supervision.
The inquiry by the department tries to discover who accessed classified information, if they were compromised, and if any are still missing. Documents with confidential, secret, or top-secret marks were at issue in the 11th Circuit’s decision.
The government is also investigating whether Trump attempted to impede the criminal probe. Trump has denied any misconduct and has accused the inquiry of being politically motivated.
The document probe is one of the legal issues Trump is dealing with as he considers running for president again in 2024. The DOJ’s motion requested that Judge Cannon remove part of her order. The DOJ stated it pertained to classified documents and that it hampered the government’s efforts to minimize potential national security risks from unauthorized disclosure. Judge Cannon denied their motion.
The 11th Circuit maintained the ruling, noting that confidential materials belong to the United States government and that Trump had failed to demonstrate an “individual interest in or need for” any classified documents.
The 11th Circuit also rejected the former president’s assertion that he declassified the records, stating that there was no evidence that he did and that declassifying official documents would not change their content or make them personal.