US justice department urges supreme court to reject Trump appeal on Mar-a-Lago documents

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The US justice department asked the US supreme court on Tuesday to reject Donald Trump’s attempt to re-include 103 documents with classification markings to the special master for review .

The department argued in a 34-page brief that the supreme court should reject the former president’s motion and keep the documents out of the special master’s purview, since Trump did not show he was being irreparably harmed and that his arguments about jurisdiction lacked merit.

“He does not acknowledge, much less attempt to rebut, the court of appeals’ conclusion that the district court’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 DoJ wrote.

“The application should be denied.”

The response – submitted by the US solicitor general on behalf of the justice department – was the latest turn in what began as an effort by Trump to slow down the criminal investigation into potential retention of national defense information that has expanded into a fraught legal battle.

In August, Trump successfully obtained through US district court judge Aileen Cannon the appointment of a special master to examine the materials seized from Mar-a-Lago and exclude from the criminal investigation documents that were protected by attorney-client or executive privilege.

The order from Cannon authorized the special master to look through the entirety of the seized material – including 103 documents marked as classified – until the US court of the appeals for the 11th circuit granted the justice department’s request to exclude those records from the review.

That prompted Trump’s lawyers to appeal last week to the supreme court, arguing in a technical and narrow motion that the 11th circuit’s decision should be reversed on the basis that it lacked the power to curtail the scope of the special master process.

Trump’s argument rested on the doctrine of “pendent appellate jurisdiction” argument, which says courts should not grant appeals on so-called non-final decisions. Cannon’s ruling appointing a special master and the scope was procedural and thus could not be appealed, the motion argued.

The justice department rejected Trump’s motion on several points, contending foremost that the former president had failed to demonstrate he would suffer “irreparable harm” if the appeal was not granted – the key legal standard for the supreme court to even consider the case.

And even if Trump could meet the irreparable harm threshold, the justice department argued, the former president’s motion would likely fail because the jurisdiction argument appeared to be wrong on the law.

“Indeed, this court has acknowledged that appellate courts reviewing interlocutory injunctive orders may properly review issues beyond just the injunction,” the solicitor general, Elizabeth Prelogar, explained in a footnote that struck at the core of Trump’s appeal.

The justice department added that if Trump truly believed the case was about a dispute under the Presidential Records Act, then he filed his original request for a special master in Washington, instead of with a judge he appointed in Florida.