US Supreme Court Rejects Trump in Classified Record Fight (3)

The US Supreme Court handed former President Donald Trump a loss in his fight over records the FBI seized from his Mar-a-Lago estate, refusing to intervene and reinstate a special master’s authority to review a set of key documents with classified markings.

The order is a win for the Justice Department, which argued that Trump legally had no interest in what were clearly government records and that there were practical risks in widening the circle of people with access to sensitive information.

The Supreme Court rejected Trump in a one-sentence order Thursday without any explanation or noted dissents.

The government previously won an order allowing federal investigators to continue using the classified materials in the criminal probe into whether Trump or anyone else mishandled government records or engaged in obstruction. Trump didn’t challenge that part of a lower court order in his request to the Supreme Court.

Trump Has 21 Days to Decide What Mar-a-Lago Records to Fight

The rebuff marks the third time since Trump lost re-election that the Supreme Court has rejected him in a document-related fight. The court last year cleared the way for Trump’s papers to be turned over to the congressional panel investigating the Jan. 6 Capitol attack.

And in February, the justices let a Manhattan prosecutor get Trump’s financial records as part of a criminal investigation of the former president and his company. Although Trump appointed three of the court’s nine justices, the trio of cases produced only a single public dissent -- Justice Clarence Thomas’s vote in the Jan. 6 case.

“Not remotely a surprise,” tweeted Orin Kerr, a criminal law professor at the University of California’s Berkeley Law and former Supreme Court law clerk. “Still, it’s good not to be surprised.”

Could Return

The case could return to the justices in a few months. The first round of litigation focused on the classified documents, but the government is pursuing a full appeal of a lower court order granting Trump’s request for a special master and blocking investigators from using the contested records until that review is finished.

The 11th US Circuit Court of Appeals agreed to put the case on a faster track -- the final written brief is due in mid-November -- but hasn’t set a date for arguments yet. Whoever loses could petition the Supreme Court to intervene.

Trump filed the latest emergency application with the Supreme Court after the appellate court last month granted the Justice Department’s request to stop the court-appointed special master from gaining access to about 103 documents with classification status. The special master, US District Senior Judge Raymond Dearie, is in the midst of reviewing the rest of the approximately 13,000 documents removed from Mar-a-Lago in August for privilege issues.

Trump’s legal argument was narrow, contending that the 11th Circuit didn’t have jurisdiction to rule on the scope of the special master’s review because that wasn’t an order that the government could immediately appeal midway through the litigation.

Trump Picked the Special Master but Now He Has Complaints

Former federal prosecutor Jennifer Rodgers said it would have been “shocking” if the justices had intervened. “There is no reason for them to take the emergency appeal, the 11th circuit is handling the matter on an emergency basis, and Trump didn’t even try to meet the legal standard arguing irreparable injury,” she said.

The Justice Department argued there were multiple grounds for the appeals court to have authority, including that the special master appointment was “inextricably” intertwined with an injunction stopping investigators from using the seized materials and that an order forcing the executive branch to disclose classified information was immediately appealable.

The government also argued Trump failed to show he’d been “irreparably” injured by keeping the classified documents out of the special master review because, as a former president, he lacked any legal interest in those materials.

Dearie’s review of the bulk of the seized records has continued amid all the higher court activity. He’s due to finish by Dec. 16 and submit a report with recommendations to US District Judge Aileen Cannon. Cannon, who was nominated to the federal court in south Florida by Trump, will rule on any disputes over documents that Trump contends should be considered privileged or personal and kept out of the government’s hands. Her decision could spur another round of appeals.

The Supreme Court case is Trump v. United States, 22A283.

(Updates with previous court actions, comments starting in fifth paragraph.)

--With assistance from Greg Stohr and Erik Larson.

To contact the reporter on this story:
Zoe Tillman in Washington at ztillman2@bloomberg.net

To contact the editor responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

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