Former President Donald Trump appeared at a rally on Oct. 1, 2022 in Warren, Michigan. (Photo by Emily Elconin/Getty Images.)
Former President Donald Trump on Tuesday asked the U.S. Supreme Court to reinstate the full powers of a special master appointed to examine documents seized from his Mar-a-Lago home and resort. The requested move at its core would also shut down a U.S. Department of Justice criminal investigation that surrounds the Mar-a-Lago material.
While lodging the request, Trump’s attorneys balked that the DOJ was treating the ex-president “quite different from the deference and collegiality” extended to former presidents George W. Bush and Barack Obama when records were transported and stored after transitions of power. Trump’s attorneys even suggested that federal prosecutors were trying to “pin some offense on him” through a scurrilous charade of “political judicial theater.”
Trump’s filing asks the Supreme Court to vacate a stay issued by the 11th Circuit Court of Appeals. The circuit court’s stay had in turn paused the implementation of an order by U.S. District Judge Aileen M. Cannon.
In essence, Cannon stopped federal prosecutors from engaging in a criminal review of the Mar-a-Lago documents until a special master — an independent third party — had vetted Trump’s assertions that some of the materials were enshrouded in various protective cloaks of privilege. Judge Cannon also wanted the special master to ascertain whether some of the material seized from Mar-a-Lago was actually classified. Senior U.S. District Judge Raymond Dearie of the Eastern District of New York was the special master selected to accomplish those requested tasks.
The DOJ appealed, and the 11th Circuit subsequently allowed the DOJ to resume its criminal probe. A panel of appellate judges determined that the public held a legitimate interest in punishing breaches that could result in “exceptionally grave damage to the national security.”
Trump’s attorneys asked the U.S. Supreme Court to vacate “to a limited extent” the 11th Circuit’s stay of Judge Cannon’s ruling.
The core of Trump’s argument is that the 11th Circuit simply has no power to review Cannon’s relevant decision. That argument is elucidated in this introduction:
The unprecedented circumstances presented by this case—an investigation of the Forty-Fifth President of the United States by the administration of his political rival and successor—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. 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. 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.
President Donald J. Trump submits this application for limited review of the Eleventh Circuit’s Stay Order. The Eleventh Circuit lacked jurisdiction to review, much less stay, an interlocutory order of the District Court providing for the Special Master to review materials seized from President Trump’s home, including approximately 103 documents the Government contends bear classification markings. This application seeks to vacate only that portion of the Eleventh Circuit’s Stay Order limiting the scope of the Special Master’s review of the documents bearing classification markings.
“President Trump argued the appointment of a special master is a procedural order — not an injunction — and therefore not subject to interlocutory review,” the filing explains while referencing and reincorporating Trump’s previous legal arguments. “Therefore, as the requirements of 28 U.S.C. § 1292(b) were not met, the appellate court lacked authority to exercise jurisdiction.”
The filing is addressed to Justice Clarence Thomas because he is the member of the nine who handles incoming petitions from the 11th Circuit.
The document goes on to recap the evolving universe of known data about the Aug. 8 search of Mar-a-Lago and complains that the DOJ is unfairly targeting Trump:
Here, the Government has chosen to treat President Trump in a manner apparently quite different from the deference and collegiality afforded to other former Presidents to manage and control their personal and Presidential Records. For instance, as part of a cooperative effort, truckloads of records from the Obama administration were relocated to what had previously been a furniture store in suburban Chicago and President George W. Bush had millions of documents transported from the White House to a warehouse in Texas.
[ . . . ]
The National Archives thoughtfully negotiated a Memorandum of Understanding with the Barack Obama Foundation concerning the management and digitization of Obama Administration records several years after his presidency.
[ . . . ]
In contrast, almost from the outset here, the Government feigned concern about purported classified records to justify commencement of a criminal investigation (not even contemplated under the Presidential Records Act) and then raided President Trump’s personal residence (a secure compound protected by U.S. Secret Service agents and used during the Trump Presidency to conduct the official business of the United States). This disparate treatment of President Trump is suggestive of a Government that has “pick[ed] the man and then search[ed] the law books . . . to pin some offense on him.” Morrison, 487 U.S. at 727 (Scalia, J., dissenting). But our courts “do not countenance” political judicial theater. See United States v. North, 910 F.2d 843, 865 (D.C. Cir. 1990).
The SCOTUS filing somewhat tacitly tees up the conflict of law issue that has been apparent since the case commenced. While Trump’s attorneys have characterized the matter as a dispute under the Presidential Records Act, the DOJ has asserted in court filings that a criminal investigation under the Espionage Act is afoot. The probe involves witness interviews, the Mar-a-Lago search and seizure mission of Aug. 8, and a grand jury probe, federal prosecutors have vouchsafed in previous filings.
Trump’s attorneys want the Supreme Court to vacate the appellate stay “which authorized review of seized documents bearing classification markings.” Or in other words, Trump’s attorneys want that DOJ review stopped so that Dearie can look at the material first.
The filing is signed by Trump attorneys Christopher Kise of Tallahassee, Florida; James M. Trusty of Washington, D.C.; Lindsey Halligan of Fort Lauderdale, Florida; and M. Evan Corcoran of Baltimore, Maryland. Kise is listed as the counsel of record. CNN had previously claimed that Kise had been “sidelined” from other aspects of the case.
The entire 296-page document is below. Most of the pages are copies of previous decisions and orders in the lower courts; Trump’s core arguments are only 38 pages long:
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