On Tuesday, former President Trump’s legal team submitted a dramatic new petition to the highest court in the land. Mr. Trump sought an urgent reversal of the previous decision by the 11th Circuit Court of Appeals, which had given a heads up to the Department of Justice in its ongoing investigation of the classified material seized at Mar-a-Lago. The request is unlikely to be heeded in the Supreme Court, and is seen by experts as a desperate last attempt at saving face.
For context, the current investigation marks one of the most significant challenges yet to the excesses of the Trump White House. The controversy began after an August 8 raid on the Mar-a-Lago resort, which is owned by Mr. Trump and has often been called ‘The Southern White House’ by the former President during his term in office. The search raid was conducted by the Federal Bureau of Investigation (FBI) and uncovered a massive number of official documents, around 103 of them classified, which are now being examined by a ‘special master’ in accordance with a request by Trump. On September 21, a unanimous decision by the Atlanta-based 11th Circuit Court of Appeals allowed federal prosecutors to examine the classified documents as well.
The latest move from the Trump legal team came in the form of an ‘emergency appeal’ against the decision two weeks ago, and was reviewed by Justice Clarence Thomas in accordance with procedures. The request consists of a 276-page filing, and sharply criticizes the U.S. Department of Justice for ‘attempting to criminalize a document management dispute’ and eschewing proper oversight of the investigation in question. Justice Thomas requested the DoJ to respond by 5 p.m. on October 11. The investigation into the classified documents can continue until the request is fulfilled and the case accepted.
The latest move is consistent with the earlier Trump strategy of claiming exclusive ‘executive privilege’ over the status of classified documents. Just last week, the former President proclaimed his right to declassify any official documents without proper procedures: “Even by thinking about it”. However, in some ways, this emergency appeal represents a compromise position far milder than the initial attempts at eliminating the investigation in its entirety.
Further, the petition is highly unlikely to be accepted at face value by the Supreme Court. Although ruled by a 6-3 conservative majority, the SCOTUS has historically been unsympathetic to emergency relief requests made on technical grounds. Nevertheless, this ‘shadow docket’ method proved highly successful for the Trump White House, which abused the mechanism more than five times as frequently as Presidents Bush and Obama. 28 out of the 41 such requests made by the current Republican leader were granted during his term in office.