DOJ Reminds SCOTUS That Trump’s Claim To Own Classified Documents Is Batsh*t Crazy

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Three weeks ago, the Eleventh Circuit issued an epic benchslap of US District Judge Aileen Cannon’s special master order in the Trump document retention case. Although the emergency relief sought was narrow, simply permitting the Justice Department to use the classified documents seized from Trump’s home in its criminal investigation and exempting those documents from the special master review, the appellate panel more or less rubbished the trial court’s jurisdictional analysis in its entirety.

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Since then, the government has appealed the full order and been granted expedited review. And eventually Trump’s legal team quit sniping at each other long enough to file an appeal of sorts with the Supreme Court. Trump’s not-insane counsel Chris Kise, the former Florida Solicitor General, appears to have won this round, and so the appeal was narrow and technical. It was also notably lacking in the screeching rhetoric his co-counsel have employed at the trial level.

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Essentially, Trump argued that the Circuit Court lacked pendent appellate jurisdiction to rule on the parameters of the special master order because it’s not an appealable injunction. In his telling, while the Circuit was free to take up the parts of Judge Cannon’s order which enjoined the government from using classified documents as part of its investigation, it erred by interfering with the part which included classified documents in the special master’s review.

Justice Thomas gave prosecutors a week to respond, and last night Solicitor General Elizabeth Prelogar filed the government’s defense of the Eleventh Circuit’s position. Principally, the brief notes that Trump failed to do more than gesture vaguely in the direction of irreparable harm occasioned by the stay, arguing in his appeal that “[i]rreparable injury could most certainly occur if the Government were permitted to improperly use the documents seized,” and claiming harm from denying him access to his own presidential records.

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(He’s supposed to visit those records at the National Archives, not the special master’s office, but whatever.)

“Applicant’s inability to demonstrate irreparable injury is itself sufficient reason to deny the extraordinary relief he seeks in this Court. Indeed, applicant does not challenge the court of appeals’ determinations that applicant will suffer no meaningful harm from the limited stay; that the government would have been irreparably injured absent a stay; and that the public interest favors a stay,” Prelogar writes.

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Similarly, the government argues that, when an order contains some injunctive relief, the appellate panel has jurisdiction to consider all aspects of the order. Alternatively, the special master’s remit should be considered a collateral order and thus immediately appealable as it “resolve[s] important questions separate from the merits,” and is “effectively unreviewable on appeal from the final judgment in the underlying action.” (Citing Mohawk Industries, 558 U.S. at 106.)

Finally, they argue that the portions of the special master order pertaining to classified documents are so inextricably intertwined with the injunctive relief that they draw the entire order into the Circuit Court’s ambit.

And in case that wasn’t pointed enough, Prelogar reminds the Justices that the Eleventh Circuit panel, which included two Trump appointees, said Judge Cannon’s arguments about the former president’s potential possessory interest in classified documents was total horseshit.

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As the court explained, “allowing the special master and [applicant’s] counsel to examine the classified records” would irreparably injure the government because “for reasons ‘too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.’” Id. at 27 (quoting Department of the Navy v. Egan, 484 U.S. 518, 529 (1988)).

In short, it’s a competent, unsexy brief which ought to put the matter rest, particularly since we’re only talking about five weeks’ time, since the Eleventh Circuit’s expedited schedule calls for the appeal of the entire order to be fully briefed by November 17. And it ought to do the trick, but, considering the crazy shit the Court’s six conservatives have been getting up to of late, who even knows!

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Trump v. United States, Supreme Court Docket

Liz Dye lives in Baltimore where she writes about law and politics.

Topics

Courts, Department of Justice, Donald Trump, Supreme Court