Justice Department asks Supreme Court to stay out of Trump document case

The US Solicitor General says Mr Trump’s lawyers made ‘little effort to show’ the Supreme Court is likely to review a lower court decision letting prosecutors use classified documents seized from Mr Trump’s home

Andrew Feinberg
Tuesday 11 October 2022 22:10 BST
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The Department of Justice has asked the Supreme Court to refrain from intervening in an ongoing dispute between the government and former president Donald Trump over classified documents found during the 8 August search of his Mar-a-Lago property.

In a brief filed with the high court on Tuesday, Solicitor General Elizabeth Prelogar said Justice Clarence Thomas — the justice responsible for reviewing 11th Circuit Court of Appeals decisions — should keep in place a three-judge panel’s order allowing the government to block “highly sensitive” documents from a special master and use them to further the criminal probe into the twice-impeached ex-president.

Ms Prelogar called a previous order by a Trump-appointed district judge which enjoined prosecutors from using classified documents seized during the search of Mr Trump’s Palm Beach, Florida home and office “unprecedented” and noted that the documents were found during a court-authorised search after a magistrate judge determined there was probable cause to believe agents would find “evidence of crimes, including wrongful retention of documents and information relating to the national defense as well as obstruction of justice” at the ex-president’s property. She also argued that the high court should exercise discretion before intruding on a national security matter.

“As this Court has emphasized, courts should be cautious before ‘insisting upon an examination’ of records whose disclosure would jeopardize national security ‘even by the judge alone, in chambers,’” she wrote.

Ms Prelogar also argued that Mr Trump’s legal team had failed to show how allowing the executive branch access to classified documents that are legally property of the executive branch would cause the ex-president irreparable harm, which is the legal standard he would need to meet before a judge will reverse the lower court’s order.

Nor did his attorneys make a case that prior precedent would support the high court reviewing or reversing the 11th Circuit decision.

“Applicant makes little effort to show that this Court would likely grant review if the court of appeals reversed the district court’s order enjoining the government from using the documents bearing classification markings pending a special master’s review,” she wrote.

“Indeed, the application does not even address the court of appeals’ reasoning supporting its conclusion that the government is substantially likely to succeed on the merits”.

Last week, Mr Trump’s attorneys asked the high court — which includes three of the ex-president’s appointees — to reverse the 11th Circuit panel’s ruling and force prosecutors to put their criminal probe into him on hold until a New York district judge, Raymond Dearie, completes a review of the more than 11,000 documents seized during the 8 August search.

The investigation into Mr Trump’s alleged unlawful retention of national defence information is the most serious of the numerous criminal investigations into his conduct. If indicted and convicted for violating any of the laws which prosecutors have said they are investigating violations of, he could potentially face decades in prison.

The ex-president has denounced the investigations as illegitimate and has falsely claimed that other former presidents have removed classified and unclassified presidential records in the same way he took boxes to his Florida home at the expiration of his term.

He has also accused the FBI of planting documents while simultaneously claiming that the documents are his personal property and demanding their return.

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