Donald Trump has sought US supreme court intervention in the fight over government papers seized by the FBI at his Mar-a-Lago home in August.
The former US president is asking the justices to let a court-appointed special master review 100 documents with classified markings.
The motion to vacate the ruling by the US appeals court for the 11th circuit represents the former president’s final chance to reinsert the 100 documents into the special master review — and potentially exclude some from the investigation into whether he illegally retained national defence information
In the emergency request, Mr Trump’s lawyers argued that the appellate court lacked jurisdiction to overrule the trial judge and decide that the justice department should regain access to the 100 documents and that the special master should be prohibited from examining them in the review.
The technical motion from Mr Trump’s side contended that although the 11th circuit court was not wrong to allow the justice department to regain access to the 100 documents for its criminal investigation, it lacked jurisdiction to curtail the special master process.
The motion hinged on the argument that the 11 circuit court should not have intervened in the scope of the special master review since the trial judge’s order was procedural and not an injunction.
In that sense, Mr Trump’s motion was narrow, seeking only to have the special master be able review the 100 documents for potential privilege protections while leaving alone the 11th circuit decision to allow the justice department to use the materials for the criminal investigation.
Mr Trump will face significant challenges even if the supreme court hears the case, even though the bench is dominated by six conservative justices — three of whom he appointed — who have previously shown deference to executive branch powers.
Just to meet the procedural criteria to vacate a lower court stay, legal experts said, Mr Trump would have to show the supreme court that it needs to intervene because he is suffering irreparable harm — which his lawyers did not appear to address directly in the 37-page filing.
Lawyers for Mr Trump also contended that the seized materials could be marked classified for national security purposes and simultaneously be personal documents — a position the justice department has previously said is impossible, with which the 11th circuit indicated it agreed.
The Trump motion was silent on whether the former president actually declassified any of the documents, as he has claimed publicly. It instead suggested the supreme court consider the case on the basis that Mr Trump had the power to do so, and might have done so, without providing evidence.
The filing came two days into the new supreme court session, and after the department of justice asked the 11th circuit to fast-track its own appeal against the appointment of a special master, arguing that the process was impeding the criminal investigation.
The justice department, aiming to capitalise on the decision Mr Trump has now appealed, contended the special master should never have been appointed because the US district court judge, Aileen Cannon, misapplied a four-part test that allowed her to exercise jurisdiction. — Guardian