Donald Trump on Tuesday asked the US supreme court to partially reverse an appellate court decision that prevented the special master, reviewing for privilege protections materials seized by the FBI from his Mar-a-Lago resort in August, from examining 100 documents with classification markings.
The motion to vacate the ruling by the US appeals court for the 11th circuit represents the former president’s final chance to reinsert the 100 documents into the special master review – and potentially exclude some from the investigation into whether he illegally retained national defense information
In the emergency request, Trump’s lawyers argued that the appellate court lacked jurisdiction to overrule the trial judge and decide that the justice department should regain access to the 100 documents and that the special master should be prohibited from examining them in the review.
The technical motion contended that although the 11th circuit was not wrong to allow the justice department to regain access to the 100 documents for its criminal investigation, it lacked jurisdiction to curtail the special master process.
The motion hinged on the doctrine of “pendent appellate jurisdiction”, which generally disfavors appeals for non-final, or interlocutory, decisions: it should not have intervened in the scope of the special master review since the trial judge’s order was procedural and not an injunction.
“That appointment order is simply not appealable on an interlocutory basis,” the filing said. “Nevertheless, the 11th circuit granted a stay of the special master order, effectively compromising the integrity of the well-established policy against piecemeal appellate review.”
In that sense, Trump’s motion was narrow, seeking only to have the special master be able review the 100 documents for potential privilege protections while leaving alone the 11th circuit decision to allow the justice department to use the materials for the criminal investigation.
Trump will face significant challenges even if the supreme court hears the case, even though the bench is dominated by six conservative justices – three of whom he appointed – who have previously shown deference to executive branch powers.
Just to meet the procedural criteria to vacate a lower court stay, legal experts said, Trump would have to show the supreme court that it needs to intervene because he is suffering irreparable harm – which his lawyers did not appear to address directly in the 37-page filing.
Lawyers for Trump also contended that the seized materials could be marked classified for national security purposes and simultaneously be personal documents – a position the justice department has previously said is impossible, with which the 11th circuit indicated it agreed.
The Trump motion was silent on whether Trump actually declassified any of the documents, as he has claimed publicly. It instead suggested the supreme court consider the case on the basis that Trump had the power to do so, and might have done so, without providing evidence.
The filing came two days into the new supreme court session, and after the justice department asked the 11th circuit to fast-track its own appeal against the appointment of a special master, arguing that the process was impeding the criminal investigation.
The justice department, aiming to capitalize on the decision Trump has now appealed, contended the special master should never have been appointed because the US district court judge, Aileen Cannon, misapplied a four-part test that allowed her to exercise jurisdiction.
In the ruling that stopped the 100 documents from being reviewed by the special master, the 11th circuit agreed with the justice department that Cannon was wrong on the first “Richey” test, regarding whether the government displayed “callous disregard” for Trump’s constitutional rights in seizing materials.
Cannon determined that Trump did not suffer callous disregard, and instead based her decision to grant a special master on the other tests. But the 11th circuit said Trump’s failure to satisfy the first callous-disregard standard alone was sufficient to dismiss his request.
“The absence of this ‘indispensa[ble]’ factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here,” ruled the three-judge panel on the 11th circuit that included two Trump appointees.
Though the appellate court was only narrowly deciding the question of whether the special master should examine the 100 documents in the review and whether the justice department could regain access to them, the government argued the reasoning suggested there should be no special master.