▶ Watch Video: Trump asks SCOTUS to intervene in Mar-a-Lago investigation

Washington — The Justice Department on Tuesday urged the Supreme Court to keep roughly 100 documents with classified markings off limits from the independent third party reviewing records seized from former President Donald Trump’s Florida residence. These documents were among the thousands retrieved in the search.

In a filing to the high court, Solicitor General Elizabeth Prelogar said it should reject Trump’s request to disseminate the records bearing classification markings to the independent third party, or special master. The emergency request, she wrote, 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 district court appointed the special master to review claims of privilege and for the return of personal property, but [Trump] has no plausible claim of privilege in or ownership of government records bearing classification markings,” she told the Supreme Court. “As the court of appeals recognized, [Trump] thus has no basis to demand special-master review of those records.”

Trump asked the Supreme Court earlier this month to intervene in the legal battle over his handling of sensitive government records after the U.S. Court of Appeals for the 11th Circuit allowed federal investigators to regain access to the 103 records bearing classification markings.

YOUNGSTOWN, OH – SEPTEMBER 17: Former President Donald Trump speaks at a Save America Rally to support Republican candidates running for state and federal offices in the state at the Covelli Centre on September 17, 2022 in Youngstown, Ohio.

Jeff Swensen / Getty Images

The unanimous three-judge panel had also limited the scope of the review by the special master and said the tranche of sensitive documents had to be excluded from the examination of the roughly 11,000 records seized by the FBI during its Aug. 8 search at Mar-a-Lago, Trump’s Palm Beach residence.

In his request to the Supreme Court, Trump’s legal team argued the 11th Circuit “lacked jurisdiction to review the special master order, which authorized the review of all materials seized from President Trump’s residence, including documents bearing classification markings.” The lower court’s stay of U.S. District Judge Aileen Cannon’s order “impairs substantially the ongoing, time-sensitive work” of the special master, they said.

“Moreover, 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 lawyers said.

The former president did not ask the Supreme Court to prohibit federal investigators from continuing to use the documents marked classified in its ongoing criminal investigation into his handling of government records. Instead, he asked the high court only to reverse the 11th Circuit’s decision regarding the special master’s access to the materials bearing classification markings retrieved by the FBI.

In the Justice Department’s response to Trump’s request, Prelogar said the former president has not acknowledged, nor attempted to rebut, the conclusion from the 11th Circuit that Cannon’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 litigation between Trump and the Justice Department stemmed from federal investigators’ efforts to retrieve records the former president had brought with him from the White House to Mar-a-Lago at the end of his presidency in January 2021. During the Aug. 8 search of the property, the FBI took roughly 11,000 documents, including 103 records that had classification markings, and 1,800 other items from a storage space and Trump’s office on the premises, according to the Justice Department.

After the search, Trump filed a lawsuit in federal district court in South Florida requesting a special master be appointed to vet all of the seized records for material that may be subject to claims of attorney-client or executive privilege.

Cannon, the judge, ultimately granted Trump’s request over opposition from the Justice Department and named Judge Raymond Dearie, who has long served on the U.S. district court in Brooklyn, to be the  special master. She also ordered federal investigators to stop using the seized materials in its criminal probe of Trump.

Federal prosecutors asked the 11th Circuit to stay a portion of Cannon’s order,  seeking to regain access to the subset of 103 documents marked as classified. They also separately asked the appeals court to review Cannon’s order appointing the special master.

In its Sept. 21 decision allowing investigators to use documents marked classified in their investigation, the 11th Circuit panel said it “cannot discern why [Trump] would have an individual interest in or need for any of the 100 documents with classification markings.”

The unsigned opinion joined by Judges Robin Rosenbaum, Britt Grant and Andrew Brasher also questioned Trump’s suggestion that he may have declassified some of the sensitive records before leaving office, noting “the record contains no evidence that any of these records were declassified.” Rosenbaum was appointed to the 11th Circuit by former President Barack Obama, and Grant and Brasher were tapped by Trump.

“In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal,” the three-judge panel wrote. “So even if we assumed that [Trump] did declassify some or all of the documents, that would not explain why he has a personal interest in them.”

But in its request to the Supreme Court, Trump’s legal team continued to question the classification status of the 103 sensitive documents. His lawyers referred to the material as “purportedly classified” and argued Trump, as president, had “absolute authority” to declassify information.

“The government’s position presumes certain documents are in fact classified, affording President Trump no opportunity to contend otherwise,” they wrote. “This presumption is at the core of the dispute. Since President Trump had absolute authority over classification decisions during his presidency, the current status of any disputed document cannot possibly be determined solely by reference to the markings on that document.”

In her filing, however, Prelogar called Trump’s assertions that he had the authority to declassify records while in office, and his contention that the special master’s appointment was warranted because the case involves a document storage dispute “wrong and irrelevant.”

Trump, she told the Supreme Court, “has never represented in any of his multiple legal filings in multiple courts that he in fact declassified any documents — much less supported such a representation with competent evidence.”

The Justice Department’s filing again took on the former president’s claim that the records with classified markings should be a part of the review under Presidential Records Act (PRA), which Trump argued would entitle him to some ownership over the documents. 

The former president’s “reliance on the PRA is misguided because he did not comply with his PRA obligation to deposit the records at issue with [the National Archives] in the first place,” the filing alleges. “As a result, the Archivist does not have custody of those records, and the PRA’s procedures do not apply to them.”

Trump, Prelogar wrote, “has no plausible claims of ownership of or privilege in the documents bearing classification markings,” and as such, he will “suffer no harm at all from a temporary stay of the special master’s review of those materials while the government’s appeal proceeds.” 

The Supreme Court, now with a six-justice conservative majority that includes three members appointed by Trump, has been asked to intervene in other records fights arising during and after Trump’s presidency, though he has not fared well.

In January, the Supreme Court turned down a bid from Trump to block the release of White House documents to the House select committee investigating the Jan. 6, 2021, assault on the U.S. Capitol. Only Justice Clarence Thomas noted he would have granted Trump’s request to shield the records from House investigators.

In 2020, the high court ruled the Manhattan district attorney could obtain troves of Trump’s business and tax records and said the president is not immune from state criminal subpoenas. Only Thomas and Justice Samuel Alito dissented. 

The Supreme Court returned the case to the lower courts for further proceedings, and after suffering more losses, Trump again asked the justices to step in. But in February 2021, the high court rejected his attempt to shield his financial records from Manhattan prosecutors, this time with no noted dissents.