Former President Donald Trump is asking the Supreme Court to intervene in the fight over records the FBI seized from his Florida home as part of an investigation into alleged retention of classified information, theft of government documents and obstruction of justice.
Lawyers for Trump asked Justice Clarence Thomas on Tuesday to issue an emergency order that would restore an outside reviewer’s authority over about 100 documents with classification markings found at Trump’s Mar-a-Lago estate during the Aug. 8 search.
Such a move would make it easier for Trump to continue to pursue claims that those documents — some marked “Top Secret,” or with even more restrictive classifications — should not be in the hands of Justice Department investigators because they are subject to executive privilege, because Trump declassified them before leaving office, or for other reasons.
A federal appeals court panel last month rejected U.S. District Court Judge Aileen Cannon’s decision to include the roughly 100 potentially classified documents in the independent review and to halt their use as part of a criminal investigation while that process plays out. A Justice Department spokesperson declined to comment.
A win at the Supreme Court for Trump would uphold part of Cannon’s decision to include those 100 records in her original order and keep them under review.
“Any limit on the comprehensive and transparent review of materials seized in the extraordinary raid of a President’s home erodes public confidence in our system of justice,” Trump’s attorneys, Christopher Kise, James Trusty, Evan Corcoran and Lindsey Halligan, wrote in the 37-page filing.
Trump’s emergency application does not appear to ask the high court to revive the part of Cannon’s order that blocked the Justice Department and FBI from using the documents with classification markings in their ongoing criminal investigation.
Instead, Trump appears to be asking Thomas simply to return those documents potentially containing national security secrets to the process being run by Special Master Raymond Dearie, a veteran U.S. District Court judge in New York whom Cannon tapped for the role at Trump’s request.
“In sum, the Government has attempted to criminalize a document management dispute and now vehemently objects to a transparent process that provides much-needed oversight,” Trump’s lawyers wrote.
Thomas issued an order on Tuesday evening directing the Justice Department to respond to Trump’s application by next Tuesday at 5 p.m. The application was directed to Thomas because the stay removing the roughly 100 documents with classification markings from the special master process was granted by the Atlanta-based 11th Circuit, which Thomas oversees.
Thomas is likely to refer Trump’s request to the full court for action, as is typical when disputes are high-profile or when an application might gain traction with some justices. There is no formal deadline for the court to respond to Trump’s filing.
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