The U.S. Justice Department on Tuesday asked the Supreme Court to reject former President Donald Trump’s bid to again empower an independent arbiter to vet classified records seized from his Florida home as part of his legal battle against investigators looking into his handling of sensitive government records.  

Trump filed an emergency request on October 4 asking the justices to lift a lower court’s decision to prevent the arbiter, known as a special master, from vetting more than 100 documents marked as classified that were among the roughly 11,000 records seized by FBI agents at his Mar-a-Lago estate in Palm Beach on August 8.  

In a filing on Tuesday, the Justice Department said Trump’s request should be denied because he has not pointed to any “clear error” in the lower court’s decision, or how he is harmed by it.  

Trump went to court on August 22 in a bid to restrict Justice Department access to the documents as it pursues a criminal investigation of him for retaining government records, some marked as highly classified including top secret, at Mar-a-Lago after leaving office in January 2021. Trump at the time asked a judge to appoint a special master, as the judge later did, to vet the seized documents and review whether any could be deemed privileged and potentially withheld from investigators. 

The Supreme Court’s 6-3 conservative majority includes three justices appointed by Trump. 

The Atlanta-based 11th U.S. Circuit Court of Appeals on September 21 put on hold a decision by U.S. District Judge Aileen Cannon, who is presiding over Trump’s lawsuit. Cannon had temporarily barred the Justice Department from examining the seized documents until the special master she appointed, Judge Raymond Dearie, had identified any that could be considered privileged. 

Cannon had tasked Dearie to review all of the seized records, including classified ones, to locate anything subject to attorney-client confidentiality or executive privilege, a legal doctrine that shields some White House communications from disclosure, and thus off limits to investigators. 

The three-judge 11th Circuit panel gave the department access to the documents marked as classified for its ongoing criminal investigation, and prevented Dearie from vetting those, noting the importance of limiting access to classified information and ensuring the department’s probe would not be harmed. The 11th Circuit panel included two judges appointed by Trump and one by former President Barack Obama. 

Trump’s lawyers told the Supreme Court that Dearie should be able to vet the records to “determine whether documents bearing classification markings are in fact classified, and regardless of classification, whether those records are personal records or presidential records.” 

The Justice Department has “attempted to criminalize a document management dispute and now vehemently objects to a transparent process that provides much-needed oversight,” Trump’s lawyers added. 

The department’s investigation seeks to determine who accessed classified materials, whether they were compromised and if any remain unaccounted for. At issue in the 11th Circuit’s ruling were documents bearing classified markings of confidential, secret or top secret.  

The department also is examining whether Trump tried to obstruct the criminal investigation. Trump has denied wrongdoing and has called the investigation politically motivated.  

Cannon, who was appointed to the bench by Trump, on September 5 barred the Justice Department from reviewing all of the materials for its criminal investigation and named Dearie to review the records. On September 15, Cannon rejected the department’s request that she partially lift her order as it related to the classified materials because it impeded the government’s effort to mitigate potential national security risks from possible unauthorized disclosure. 

The 11th Circuit put that decision on hold, noting that classified records belong to the U.S. government and that Trump had not shown that he holds an “individual interest in or need for” any of the classified documents.  

The 11th Circuit also rejected any suggestion that Trump had declassified the documents, as the former president has claimed, saying there was “no evidence” of such action and that the argument was a “red herring because declassifying an official document would not change its content or render it personal.” 

The three statutes underpinning the search warrant used by the FBI at Mar-a-Lago make it a crime to mishandle government records, regardless of their classification status. 

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