DOJ to SCOTUS: Steer clear of Trump’s Mar-a-Lago case appeal

The Justice Department is asking the Supreme Court to turn down former President Donald Trump’s bid to get a set of about 100 documents marked as classified back into the hands of an independent “special master” reviewing materials seized from his Mar-a-Lago estate.

Solicitor General Elizabeth Prelogar said in a brief filed Tuesday afternoon that there’s no reason for the high court to step into the dispute over what role the court system should play, if any, in overseeing investigators' access to the records the FBI recovered from Trump’s Florida home.

Trump is seeking to get the records with classified markings back into the special master review in what appears to be an attempt to raise arguments that he declassified the records while he was president or that he declared them to be personal files not subject to the Presidential Records Act.

“Applicant 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,” Prelogar wrote in the 32-page brief.

Trump has repeatedly, and publicly, claimed to have declassified all of the items seized by the FBI that bear classification markings — including some which characterize the records as among the most sensitive, closely held secrets the government possesses. But his lawyers have repeatedly refused to echo those claims, saying they don’t want to commit themselves to possible defense theories like declassification before a potential indictment.

In several rounds of legal filings and oral argument — including Trump’s application to the Supreme Court last week — the former president’s attorneys have decidedly avoided the issue, saying only that Trump’s access to the records remains absolute, “whether classified or declassified.”

Trump has also not presented any evidence he designated any of the seized materials as personal records, and DOJ has argued that classified documents — which inherently bear on national security — could never fit the statutory definition of personal records, since they are likely to have value to an incumbent or future administration.

The initial special master order U.S. District Court Judge Aileen Cannon issued at Trump’s request barred the government from using any of the seized records, including the potentially classified documents, for criminal investigation purposes until the special master process is complete.

The Justice Department appealed her ruling to the Atlanta-based 11th Circuit Court of Appeals. But it sought emergency relief only to restore access to the documents with classification markings, aiming to exclude them from the special master process. The appeals court sided with prosecutors on those issues last month in a 3-0 decision, although the broader appeal of Cannon’s ruling remains pending.

Trump’s bid for Supreme Court relief did not seek to restore the ban Cannon initially imposed on investigators accessing the documents with classified markings.

Trump’s request to the Supreme Court and the Justice Department’s response were technically submitted to Justice Clarence Thomas, because he oversees the 11th Circuit, which includes Florida. However, in high-profile cases, the individual justices almost always refer requests for emergency relief to the full court.