Solicitor General Asks Justices to Stay Out of Mar-a-Lago Docs Case 

WASHINGTON — The Biden administration on Tuesday asked the Supreme Court to reject former President Donald Trump’s request to allow the special master reviewing documents seized from Mar-a-Lago access to those labeled or otherwise marked classified.

In a 34-page filing, 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 while the government’s appeal proceeds.

Prelogar went on to note Trump has “undermined any claim that he is suffering irreparable injury from the stay by opposing the government’s motion to expedite the underlying appeal and urging that oral argument be deferred until ‘January 2023 or later.’”

On the matter of Trump’s purported ownership stake in the documents, including his repeated claims of attorney-client privilege and executive privilege, Prelogar said Trump has made “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. 

Prelogar said the case only arose because of an “unusual — indeed unprecedented — order” that was issued by U.S. District Judge Aileen Cannon in response to Trump’s lawsuit filed after the government search of his Mar-a-Lago residence in early August. 

During that search, investigators identified more than 100 classified documents among the more than 11,000 records they seized from the home.

Cannon, a Trump-appointee, prevented the government from using the documents as part of a criminal investigation, and appointed the special master to review them.

On Sept. 21, the 11th U.S. Circuit Court of Appeals barred the special master, Judge Raymond Dearie, from reviewing the documents.

Trump then appealed to Justice Clarence Thomas, who handles emergency appeals from the 11th Circuit, seeking to keep the Justice Department from using the documents in its criminal investigation until after the special master’s review is completed.

Trump’s lawyers want the special master assigned in the case to review the more than 100 documents marked classified — which, if allowed, could open the door to Trump’s team reviewing the records and arguing they should be off-limits to prosecutors in a criminal case.

The full court could act on the matter at any time. It would take five justices to agree to grant Trump’s request.

The Justice Department’s main argument is that the appeals court was correct, and they said the Trump legal team was wrong to argue the Supreme Court should take the case.

“Indeed, the most that [Trump]  could possibly establish about appellate jurisdiction in this case is that it presents a ‘difficult’ question,” and that, Prelogar wrote, is not enough, “since the difficulty of a question is inversely proportional to the likelihood that a given answer will be clearly erroneous.”

Dan can be reached at [email protected] and @DanMcCue