Washington — The Supreme Court on Thursday turned down a request from former President Donald Trump to allow the independent arbiter vetting the documents seized from his South Florida residence access to a batch of roughly 100 documents with classification markings retrieved in the search.
The order from the high court keeps the subset of records off-limits to the arbiter, or special master, who is reviewing the more than 11,000 documents that the FBI took from Mar-a-Lago. There were no noted dissent.
The decision came in response to an emergency request from Trump to allow the special master to examine the sensitive documents. The former president asked the Supreme Court to intervene in the legal fight over his handling of sensitive government records after the U.S. Court of Appeals for the 11th Circuit last month allowed federal investigators to regain access to the 103 records marked classified.
The unanimous three-judge panel — two of the judges were appointed by Trump and one by former President Barack Obama — also limited the scope of the review by the special master and said the subset of sensitive materials must be kept separate from the examination of the roughly 11,000 records seized by the FBI from Mar-a-Lago, Trump’s Palm Beach resort.
The Supreme Court’s order leaves intact the decision from the 11th Circuit regarding the special master’s ability to assess the documents bearing classification markings taken in the Aug. 8 search.
Trump’s lawyers did not ask the high court to prohibit federal investigators from continuing to use the documents marked classified in its ongoing criminal investigation into the former president’s handling of government records.
Instead, they argued in their filing that the 11th Circuit “lacked jurisdiction to review the special master order, which authorized the review of all materials seized from President Trump’s residence, including documents bearing classification markings.” The lower court’s stay of U.S. District Judge Aileen Cannon’s order “impairs substantially the ongoing, time-sensitive work” of the special master, Trump’s lawyers said.
“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,” they continued.
The Justice Department opposed Trump’s emergency request and urged the court not to disturb the 11th Circuit’s order, arguing his application concerned “an unprecedented order by the district court restricting the Executive Branch’s use of its own highly classified records in an ongoing criminal investigation and directing the dissemination of those records outside the Executive Branch for a special-master review.”
“The district court appointed the special master to review claims of privilege and for the return of personal property, but [Trump] has no plausible claim of privilege in or ownership of government records bearing classification markings,” Solicitor General Elizabeth Prelogar told the Supreme Court. “As the court of appeals recognized, [Trump] thus has no basis to demand special-master review of those records.”
Prelogr also said the former president has not acknowledged, nor attempted to rebut, the conclusion from the 11th Circuit that Cannon’s order “was a serious and unwarranted intrusion on the Executive Branch’s authority to control the use and distribution of extraordinarily sensitive government records.”
The dispute between Trump and the Justice Department stemmed from the search of Mar-a-Lago conducted by the FBI on Aug. 8 to retrieve records the former president brought with him from the White House to his South Florida property at the end of his presidency in January 2021. During the search, federal investigators took roughly 11,000 documents in all, including 103 records that had classification markings, from a storage space and Trump’s office on the premises, according to the Justice Department.
In the wake of the search, Trump filed a lawsuit in federal district court in South Florida requesting a special master be appointed to review all of the seized records for material that may be subject to claims of attorney-client or executive privilege.
The judge, Cannon, ultimately granted Trump’s request and named Judge Raymond Dearie, who has long served on the U.S. district court in Brooklyn, to serve as special master. She also ordered federal investigators to stop using the seized materials in its criminal probe of Trump.
The Justice Department asked the 11th Circuit to stay a portion of Cannon’s order, seeking to regain access to the 103 documents marked as classified. Federal prosecutors also separately asked the appeals court to review Cannon’s order appointing the special master, and they requested the court speed up its consideration of the appeal. Trump, however, opposed the request for an expedited schedule.
The 11th Circuit agreed to expedite the Justice Department’s appeal, though on a slightly longer timeline than what prosecutors proposed.
In its Sept. 21 decision allowing investigators to use the seized documents in their probe, the 11th Circuit panel said it “cannot discern why [Trump] would have an individual interest in or need for any of the 100 documents with classification markings.”
The unsigned opinion joined by Judges Robin Rosenbaum, Britt Grant and Andrew Brasher also questioned Trump’s suggestion he may have declassified some of the sensitive records before leaving office, noting “the record contains no evidence that any of these records were declassified.”
“In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal,” the three-judge panel wrote. “So even if we assumed that [Trump] did declassify some or all of the documents, that would not explain why he has a personal interest in them.”
But in its filing to the Supreme Court, Trump’s legal team continued to raise questions about the classification status of the 103 sensitive documents. His lawyers repeatedly referred to the material as “purportedly classified” and argued Trump, as president, had “absolute authority” to declassify information.
“The government’s position presumes certain documents are in fact classified, affording President Trump no opportunity to contend otherwise,” they wrote. “This presumption is at the core of the dispute. Since President Trump had absolute authority over classification decisions during his presidency, the current status of any disputed document cannot possibly be determined solely by reference to the markings on that document.”
Prelogar, however, called Trump’s assertions that he had the authority to declassify records while in office, and his contention that the special master’s appointment was warranted because the case involves a document storage dispute “wrong and irrelevant.”
Trump, she told the Supreme Court, “has never 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.”
The Justice Department’s filing also took on the former president’s claim that the records with classified markings should be a part of the review under Presidential Records Act (PRA), which Trump argued would entitle him to some ownership over the documents.
The former president’s “reliance on the PRA is misguided because he did not comply with his PRA obligation to deposit the records at issue with [the National Archives] in the first place,” the filing alleges. “As a result, the Archivist does not have custody of those records, and the PRA’s procedures do not apply to them.”
Trump “has no plausible claims of ownership of or privilege in the documents bearing classification markings,” and as such, he will “suffer no harm at all from a temporary stay of the special master’s review of those materials while the government’s appeal proceeds,” Prelogar wrote.
The Supreme Court, now with a six-justice conservative majority that includes three members appointed by Trump, has been asked to intervene in other document disputes arising during and after Trump’s presidency, though he has not fared well.
In January, the Supreme Court declined a bid from Trump to block the release of White House documents to the House select committee investigating the Jan. 6, 2021, assault on the U.S. Capitol. Only Justice Clarence Thomas noted he would have granted Trump’s request.
In 2020, while he was still president, the high court ruled Manhattan’s top prosecutor could obtain troves of Trump’s business and tax records and said the president is not immune from state criminal subpoenas. Only Thomas and Justice Samuel Alito dissented.
The Supreme Court returned the case to the lower courts for further proceedings, and after suffering more losses, Trump again asked the high court to intervene. But the justices in February 2021 rejected his attempt to shield his financial records from Manhattan prosecutors, this time with no dissents.
