Former President Trump’s fight against the Justice Department’s investigation into the mismanagement of federal documents at Mar-a-Lago has now reached the Supreme Court, but legal experts believe he may not fair well if his case is remanded to new justices.
A federal district court judge in Florida approved Trump’s request to appoint a special master to analyze the more than 10,000 government documents seized at his residence to see if any are protected by executive or attorney-client privileges.
However, as the lawsuit progresses through the legal system, other judges appear to be increasingly hesitant to approve Trump’s requests.
The 11th Circuit Court of Appeals provided the Department of Justice (DOJ) with an early victory in the case, removing more than 100 classified records from special master review and later agreeing to an expedited review of the DOJ’s challenge to Judge Aileen Cannon’s decision to approve the special master process.
However, Trump’s emergency petition to the Supreme Court was not recognized as one – Justice Clarence Thomas granted the DOJ a week to answer.
“All indications are that the appellate litigation continues to move in the government’s direction,” Brad Moss, a national security law specialist, told The Hill.
Trump’s request for the Supreme Court to participate in the case was the latest move by a legal team that has adopted an aggressive stance in its fight with the Justice Department.
However, the file itself was rather thin.
The request from Trump asks that the classified records in question be returned to the pool of documents included in the special master review, rather than asking the court to prevent the Justice Department from using those documents as they continue their investigation, as Cannon had requested in her original order.
Trump’s attorneys claimed that the federal appeals court erred in allowing the Department of Justice to challenge a procedural step.
They said that the appeal “impairs substantially the ongoing, time-sensitive work of the special master” and said the 11th Circuit’s intervention “effectively compromis[es] the integrity of the well-established policy against piecemeal appellate review.”
Trump’s attorneys also repeated legal arguments from previous pleadings, implying that he could have declassified the materials in his residence but chose not to. The assertion sparked suspicion from the special master, who first wanted Trump’s legal team to back up the allegation before Cannon intervened and stated Trump did not have to comply with the request.
The 11th Circuit’s agreement to accelerate the Justice Department’s case might potentially be beneficial to the government.
A three-judge panel for the court stated in its original opinion that Cannon erred in appointing the special master, indicating that the court may be convinced Trump has little claim as a former executive to any of the records.
However, it also helps their inquiry in the long run.
“The Justice Department is correct in asserting that being unable to use the unclassified documents currently before the special master could hinder its ongoing investigation into the classified records,” Greer stated.
However, the Department of Justice’s successes continue to postpone the final decision on the documents.
The appeals procedure before the 11th Circuit and Supreme Court may take months, with a decision from the appeals court expected in December at the earliest.
“The timing is still not great for DOJ as they would likely want to complete any investigation involving the relevance of the unclassified records prior to bringing charges on the classified records,” Greer said.