Editor’s Note: This story has been updated to more precisely reflect the narrow request Trump is making to the Supreme Court.
Former President Trump asked the Supreme Court on Tuesday to throw out an 11th Circuit Court of Appeals ruling that blocked a special master from accessing classified records it seized from Mar-a-Lago.
Trump asked Justice Clarence Thomas to vacate the appeal court decision, effectively reinstating an order issued last month by U.S. District Judge Aileen Cannon for the Southern District of Florida.
Thomas, the circuit justice for the 11th, is among the most hard-right justices on the court. In 2020, he and Justice Samuel Alito were the only two justices to vote to hear an election challenge filed by state attorneys general.
Trump is bringing the case before a court on which he appointed three out of nine justices, and which is currently skewed 6-3 in favor of the conservative majority.
The argument of the filing is straightforward: the 11th Circuit did not have the authority to overrule Judge Cannon when she appointed a special master and allowed him to review classified records that were seized from Mar-a-Lago.
Trump argued that Cannon’s appointment order of the special master – U.S. District Judge Raymond Dearie for the Eastern District of New York – was not subject to appeal, and asks the Supreme Court to halt the appellate ruling as it pertained to classified records under Dearie’s review.
Vacating the appeals court stay could allow Trump to review the classified records that the FBI seized from Mar-a-Lago, and which he took from the White House as he left office in January 2021.
That’s been a goal of the former President’s since the raid on Mar-a-Lago took place in August. Trump immediately demanded that the FBI share records taken from his estate with him.
“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 attorneys wrote in the Tuesday filing.
Thomas has the option of ruling on Trump’s request alone, or he could refer the matter to the full court.
Trump has continued to suggest that he declassified some of the records that the FBI took, while his lawyers have been happy to wave towards the claim without actually making it.
They made the same move in the Tuesday SCOTUS filing, saying that the records were Trumps “classified or declassified.” The filing does not assert that Trump declassified the records, though it does claim that Trump has a broad power to declassify if he wanted to.
Classified or not, Cannon’s order threw an unprecedented wrench in the DOJ’s investigation. Trump suggests in the filing that Cannon’s order merely appointed an independent arbiter to sift through the records; rather, it halted the probe in its entirety. The 11th Circuit’s ruling allowed it to continue with respect to the classified records.
Reinstating Cannon’s original order would allow the process that she set in motion to continue. That would likely end in Dearie, the special master, reviewing the classified records that are at the heart of the DOJ’s investigation, before they continued on to Trump and his attorneys.
It would be a stunning breach both of criminal procedure – letting the target of an investigation review records from the probe – but also of classification and public records law: Trump is no longer the president.
Read the filing here: