The Justice Department on Tuesday urged the Supreme Court to reject former President Donald Trump's appeal to have a special master review about 100 documents with classified markings that were seized from his Mar-a-Lago residence.
U.S. District Court Judge Aileen Cannon, a Trump appointee, last month named federal Judge Raymond Dearie as a special master to review documents seized from Mar-a-Lago and barred the DOJ from continuing its investigation into the 100 documents with classification markings. The 11th Circuit Court of Appeals overturned her order blocking the DOJ from investigating the documents but Trump filed an emergency appeal to the Supreme Court asking that the documents first be reviewed by Dearie.
Solicitor General Elizabeth Prelogar in a 34-page filing on Tuesday asked the Supreme Court to reject Trump's request, calling Cannon's initial ruling "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," Prelogar wrote. "As the court of appeals recognized, [Trump] thus has no basis to demand special-master review of those records."
Trump's lawyers in his appeal argued 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."
"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," Trump's team wrote.
But Prelogar argued that Trump's lawyers never addressed the 11th Circuit's conclusion that Cannon's initial 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 11th Circuit in its decision said that it "cannot discern why [Trump] would have an individual interest in or need for any of the 100 documents with classification markings."
The appeals court also pushed back on Trump's public claims that he may have declassified some of the documents he took home, writing that "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," a three-judge panel that included two Trump appointees 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."
Trump's lawyers in their Supreme Court appeal referred to the documents as "purportedly classified" and insisted that as president he had "absolute authority" to declassify materials.
Prelogar in the Tuesday filing called the argument "wrong and irrelevant," noting that Trump "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."
Trump, the filing said, "has no plausible claims of ownership of or privilege in the documents bearing classification markings," and 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."
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Harvard Law Professor Laurence Tribe said on Twitter that the DOJ filing is "utterly devastating" for Trump's case.
"It pulverizes all of Trump's arguments and leaves none standing," he wrote.
Trump's appeal only seeks a special master review of the 100 documents but doesn't ask to reimpose the initial order halting the DOJ's criminal probe.
"Why would they want to do that while permitting the criminal investigation to proceed? Well, it seems likely that they're still trying to figure out what was in those documents," former U.S. Attorney Joyce White Vance told MSNBC. "They want visibility on what the government has managed to reclaim from Trump. And there's a very inside baseball argument about jurisdiction, but the government most likely has the better part of that argument."
Lisa Rubin, a former attorney and MSNBC legal analyst, noted that the DOJ filing repeatedly took swipes at Trump's public arguments regarding classification, executive privilege and his authority to possess the documents.
"A clear, highly competent brief," Rubin tweeted, "that feels like a veteran kindergarten teacher calmly correcting a naughty kid."
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