The US justice department has asked the US supreme court to reject Donald Trump’s attempt to re-include 103 documents with classification markings in the special master review that is examining whether materials the FBI seized from his Mar-a-Lago resort are protected by privilege.
The justice department argued in a 34-page brief that the supreme court should reject the former president’s motion and keep the 103 documents out of the special master’s purview since Trump did not show he was being irreparably harmed and that his arguments about jurisdiction lacked merit.
“He does not acknowledge, much less attempt to rebut, the court of appeals’ conclusion that the district court’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 justice department wrote.
“The application should be denied.”
The filing – submitted by the US solicitor general on behalf of the justice department – was the latest turn in what began as an effort by Trump to slow down the criminal investigation into possible retention of national defense information that has expanded into a fraught legal battle.
In August, Trump successfully obtained, through the US district court judge Aileen Cannon, the appointment of a special master to examine the materials seized from Mar-a-Lago and exclude from the criminal investigation documents that were protected by attorney-client or executive privilege.
The order from Cannon authorized the special master to look through the entirety of the seized material – including 103 documents marked as classified – until the US court of the appeals for the 11th circuit granted the justice department’s request to exclude those records from the review.
That prompted Trump’s lawyers to appeal last week to the supreme court, arguing in a technical and narrow motion that the 11th circuit’s decision should be reversed because it lacked the power to curtail the scope of the special master process.
Trump’s argument rested on the doctrine of “pendent appellate jurisdiction”, which says courts should not grant appeals on so-called non-final decisions. Cannon’s ruling appointing a special master and the scope was procedural and thus could not be appealed, the motion argued.
The justice department rejected Trump’s motion on several points, contending foremost that the former president had failed to demonstrate he would suffer “irreparable harm” if the appeal was not granted – the key legal standard for the supreme court to even consider the case.
And even if Trump could meet the irreparable harm threshold, the justice department argued, the former president’s motion would probably fail because the jurisdiction argument appeared to be wrong on the law.
“Indeed, this Court has acknowledged that appellate courts reviewing interlocutory injunctive orders may properly review issues beyond just the injunction,” the solicitor general, Elizabeth Prelogar, explained in a footnote that struck at the core of Trump’s appeal.
The justice department added that if Trump truly believed the case was about a dispute under the Presidential Records Act, then he should have filed his original request for a special master in Washington, instead of with a judge he appointed in Florida.
