WASHINGTON -- Former President Donald Trump asked the Supreme Court to intervene in litigation over documents marked as classified that the FBI removed from his Florida estate, saying Tuesday an appeals court had lacked jurisdiction to rule on the matter.
Although the Supreme Court is dominated by six conservative justices, three of them appointed by Trump, it has rejected earlier efforts to block the disclosure of information about him. Legal experts said Trump's new emergency application faces significant challenges.
The new filing was largely technical, saying that the 11th U.S. Circuit Court of Appeals, in Atlanta, had not been authorized to stay aspects of a trial judge's order appointing a special master in the case.
"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 application said.
A three-judge panel from the Atlanta-based U.S. Court of Appeals for the 11th Circuit last month limited the special master's review to the much larger tranche of nonclassified documents. The judges, including two Trump appointees, sided with the Justice Department, which had argued there was no legal basis for the special master to conduct his own review of the classified records.
But Trump's lawyers said in their application to the Supreme Court that it was essential for the special master to have access to the classified records to "determine whether documents bearing classification markings are in fact classified, and regardless of classification, whether those records are personal records or Presidential records."
"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," the application states.
It says that without the special master review, "the unchallenged views of the current Justice Department would supersede the established authority of the Chief Executive." An independent review, the Trump team says, ensures a "transparent process that provides much-needed oversight."
The FBI says it seized roughly 11,000 documents, including about 100 with classification markings, during its search. The Trump team asked a judge in Florida, Aileen Cannon, to appoint a special master to do an independent review of the records.
Cannon subsequently assigned a veteran Brooklyn judge, Raymond Dearie, to review the records and segregate those that may be protected by claims of attorney-client privilege and executive privilege. She also barred the FBI from being able to use the classified documents as part of its criminal investigation.
The Justice Department's request to the appeals court was limited, asking only that the 100 or so documents with classified markings be excluded from the special master's assessment and that its review of them be allowed to continue.
In a detailed and forceful 29-page decision, the appeals court agreed, staying Cannon's order "to the extent it enjoins the government's use of the classified documents and requires the government to submit the classified documents to the special master for review." The decision, which was unsigned, was joined by Judges Britt Grant and Andrew Brasher, appointed by Trump, and Judge Robin Rosenbaum, appointed by President Barack Obama.
The ruling was skeptical of Trump's arguments.
"We cannot discern why [Trump] ... would have an individual interest in or need for any of the 100 documents with classification markings," the panel wrote.
The panel said Trump's suggestion that he may have declassified the documents was legally irrelevant.
"Plaintiff suggests that he may have declassified these documents when he was president," the panel wrote. "But the record contains no evidence that any of these records were declassified. And before the special master, plaintiff resisted providing any evidence that he had declassified any of these documents."
The panel added that the question did not figure in its analysis.
"The declassification argument is a red herring because declassifying an official document would not change its content or render it personal," the decision states.
In an interview last month, Trump took an expansive view of his power to declassify documents, one at odds with past practice and judicial precedent.
"You can declassify just by saying 'it's declassified,' even by thinking about it," Trump told Sean Hannity on Fox News.
The new filing addressed Trump's declassification powers obliquely.
"President Trump was still the president of the United States when any documents bearing classification markings were delivered to his residence in Palm Beach, Fla.," it said. "At that time, he was the commander in chief of the United States. As such, his authority to classify or declassify information bearing on national security flowed from this constitutional investment of power in the president."
MIXED RESULTS
Trump has had decidedly mixed success in earlier efforts to keep his presidential and business records from law enforcement officials and congressional investigators.
In 2020, while Trump was still president, the court ruled that he had no absolute right to block release of financial records sought by prosecutors in New York.
"No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding," Chief Justice John Roberts wrote for the majority. Justices Clarence Thomas and Samuel Alito dissented.
The court returned that case to the lower courts for further proceedings. After they again ruled against Trump, he asked the justices to hear a new appeal in 2021.
In a decisive defeat, the court refused to hear the case, clearing the way for the release of the records. There were no noted dissents.
In January, the Supreme Court refused his request to block the release of White House records held by the National Archives and Records Administration concerning the Jan. 6 attack on the Capitol, effectively rejecting his claim of executive privilege. The court let stand an appeals court ruling that Trump's desire to maintain the confidentiality of presidential communications was outweighed by the need for a full accounting of the attack.
Only Thomas noted a dissent.
Trump's lawyers submitted the Supreme Court application to Thomas, who oversees emergency matters from Florida and several other Southern states.
Thomas can act on his own or, as is usually done, refer the emergency appeal to the rest of the court. Late Tuesday, the court said Thomas asked the Justice Department to respond to the petition by Oct. 11.
It has emerged that the justice's wife, Virginia Thomas, had sent a barrage of text messages to the Trump White House urging efforts to overturn the 2020 election. Experts in legal ethics said Clarence Thomas' connection to the case should have prompted him to disqualify himself from it.
BREAKING PROTOCOL
During his four years in office, Trump never strictly followed the rules and customs for handling sensitive government documents, according to 14 officials from his administration, most of whom spoke on the condition of anonymity to discuss what they called Trump's mishandling of classified information.
Former White House Chief of Staff John Kelly said Trump "rejected the Presidential Records Act entirely." He added that "many people would regularly say to him, 'We have to capture these things.'"
"What he did doesn't surprise me at all," Kelly said.
Trump took transcripts of his calls with foreign leaders as well as photos and charts used in his intelligence briefings to his private residence with no explanation. He demanded that letters he exchanged with North Korean dictator Kim Jong Un be kept close at hand so he could show them off to visitors.
Documents that would ordinarily be kept under lock and key mingled with piles of newspaper articles in Trump's living quarters and in a dining room that he used as an informal office.
Former officials credited Kelly and then-Staff Secretary Rob Porter, as well as his successor, Derek Lyons, with trying to impose some order on Trump's chaotic ways. But it was a struggle.
Aides also found other ways to circumvent Trump's "sticky fingers," as one put it.
White House staffers retrieved from the residence documents that Trump had torn into pieces, then reassembled the papers and returned to them to secure facilities so that they could be preserved as presidential records. Others who routinely briefed Trump said they developed a practice of never leaving classified documents in his possession unless he demanded them.
Officials and aides who worked in proximity to Trump said they are not sure how more than 300 classified documents ended up at his Mar-a-Lago estate. But in the waning days of his presidency, as Trump grudgingly began to pack up his belongings, he included documents that should have been sent to the National Archives and Records Administration, along with news articles and gifts he received while president, several former officials said.
A longtime adviser who still sees Trump regularly described him as a "pack rat" and a "hoarder." Several former aides said Trump spent his time in office flouting classification rules and intimidating staffers who might try to take secret intelligence material away from him.
Some White House lawyers took note of the two dozen boxes of documents in the residence and suggested that Trump turn them over, according to an email from the Archives reviewed by The Post. When Archives officials ultimately found extensive classified materials in boxes returned to them from Mar-a-Lago, it was a surprise to some of his advisers, including White House Counsel Pat Cipollone and his deputy, Pat Philbin, according to a person familiar with the matter.
"We had no idea what was in those boxes," said a lawyer with knowledge of the packing.
At least one lawyer for Trump's political group, Alex Cannon, was so concerned about what was in the boxes sent to Mar-a-Lago that he in late 2021 told other Trump aides not to handle the boxes or their contents, according to two people who spoke to Cannon.
A spokesman for Trump declined to comment, other than to repeat a previously issued statement in which he accused the Justice Department of leaking information to The Washington Post to hurt Trump's image.
"President Trump remains committed to defending the Constitution and the Office of the Presidency, ensuring the integrity of America for generations to come," the statement read.
Information for this article was contributed by Adam Liptak of The New York Times, by Eric Tucker, Mark Sherman and Jessica Gresko of The Associated Press and by Shane Harris, Josh Dawsey, Ellen Nakashima and Jacqueline Alemany of The Washington Post.