WASHINGTON — The Biden administration asked the Supreme Court on Tuesday to reject former President Donald Trump's request to give the special master reviewing documents seized from his Mar-a-Lago estate access to those marked as classified.
Solicitor General Elizabeth Prelogar said in court papers that Trump would suffer "no harm at all" if the documents are temporarily withheld from the special master. Addressing Trump's potential ownership stake in the documents, including possible assertions of attorney-client privilege or executive privilege, Prelogar said Trump had "no plausible claims."
Whatever the court decides in weighing Trump’s relatively narrow request, it will not affect the Justice Department’s access to the same documents in its criminal investigation. The more than 100 classified documents are just a small part of the 11,000 records federal agents seized amid concerns that Trump had unlawfully retained official White House records after he left office.
The high court is reviewing the 11th U.S. Circuit Court of Appeals' decision Sept. 21 to bar the special master, Senior U.S. District Judge Raymond Dearie, from reviewing the documents. Trump had not contested a separate part of the ruling that allowed the Justice Department to use the documents.
A decision by the Supreme Court is due at any time.
Prelogar said the case arose only because of an "unusual — indeed unprecedented — order" that U.S. District Judge Aileen Cannon issued in response the lawsuit Trump filed after the government searched his Mar-a-Lago residence in Palm Beach, Florida, in early August. Cannon prevented the government from using the documents as part of a criminal investigation, a decision partly blocked by the appeals court, and appointed the special master to review them.
"This application 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," Prelogar wrote.
Trump’s lawyers had said the appeals court's decision to block access to the special master “impairs substantially the ongoing, time-sensitive work of the special master.” They added that "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."
The appeals court said that certain documents are deemed classified because they include information that could harm national security and that for that reason people may have access to them only if they need to know that information.
Under federal law, official White House records are federal property and must be handed over to the National Archives when a president leaves office. Trump says that he did nothing improper and that he wants Dearie to determine the status of the documents, including those marked as classified.
Although the Supreme Court has a 6-3 conservative majority, including three justices he appointed, Trump has not recently fared well in other emergency applications, including his attempt to prevent White House documents from being handed over to the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol and his bid to avoid disclosure of his financial records to prosecutors in New York.