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DOJ tells Supreme Court to stay out of Trump classified documents probe

The government said a special master review of classified documents recovered from Trump’s possession would be inappropriate since they are not the former president’s personal property.

WASHINGTON (CN) — The Department of Justice urged the Supreme Court on Tuesday to reject an appeal by former President Donald Trump that would allow independent review of classified documents seized from his Mar-a-Lago home. 

Raymond Dearie, a former chief judge of the federal court based in Brooklyn, was appointed at Trump’s request to be a special master, reviewing documents seized from Trump’s Florida home for information protected by attorney-client privilege or executive privilege. However, the government said the classified documents belong to them — not Trump — so they can’t possibly fall under Dearie’s review. 

“The district court appointed the special master to review claims of privilege and for the return of personal property, but applicant has no plausible claim of privilege in or ownership of government records bearing classification markings,” Solicitor General Elizabeth Prelogar wrote in the government’s brief. “As the court of appeals recognized, applicant thus has no basis to demand special-master review of those records. Applicant does not acknowledge, much less attempt to rebut, the court’s careful analysis of those issues.” 

Prelogar said the district court’s ruling blocking an ongoing criminal investigation and distributing classified government records outside of the executive branch was unprecedented. 

“This application concerns an unprecedented order by the district court restricting the Executive Branch’s use of its own highly classified records in an ongoing criminal investigation and directing the dissemination of those records outside the Executive Branch for a special-master review,” the government’s brief states. 

Trump has asked the high court to allow classified documents taken from his residence to be examined by the special master for privileged information. However, the government said the former president does not explain how keeping these documents out of the special master’s review while an appeal moves forward causes him harm. 

“Most notably, applicant has not even attempted to explain how he is irreparably injured by the court of appeals’ partial stay, which simply prevents disclosure of the documents bearing classification markings in the special-master review during the pendency of the government’s expedited appeal,” Prelogar wrote. “Applicant’s inability to demonstrate irreparable injury is itself sufficient reason to deny the extraordinary relief he seeks in this Court.” 

The government obtained a search warrant for Trump’s Mar-a-Lago residence in August where FBI agents found around 100 classified documents and 11,000 other government records. Trump’s handling of sensitive documents following his single term in office is now at the heart of a criminal investigation by the Justice Department. 

The Justice Department claims allowing Dearie to examine the classified documents would cause the government — not Trump — harm because classified information needs only to be disclosed at the government’s discretion. 

“As the court explained, ‘allowing the special master and [applicant’s] counsel to examine the classified records’ would irreparably injure the government because ‘for reasons ‘too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it,’’” the brief states.

Trump told the high court that the 11th Circuit did not have jurisdiction to block the district court’s discretion. The government disagrees.

“The court of appeals thus correctly held that it had appellate jurisdiction to review and stay the portion of the September 5 order that requires the government to turn over the documents bearing classification markings for special-master review,” Prelogar wrote. “And even if there were some doubt on that score, applicant certainly cannot establish the clear error required to justify the relief he seeks — particularly because 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 application before the court was submitted to Justice Clarence Thomas per the court’s circuit assignments for underlying cases. Thomas has the authority to rule on the application by himself or refer the case to the entire court. 

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