On Thursday, the U.S. Supreme Court rejected former President Donald Trump’s request to intervene in ongoing litigation surrounding documents seized this summer by the FBI from his Mar-a-Lago residence in Palm Beach, Florida.
In a case about whether Trump illegally removed or concealed classified information when he left office, the former President had asked the Supreme Court to step in and overrule an appeals court’s decision that removed roughly 100 documents with classification markings from oversight by an independent review of the materials taken from Mar-a-Lago.
Judge Raymond J. Dearie, a federal judge in Brooklyn, has been appointed the case’s special master and been tasked with evaluating the over 11,000 materials taken from Trump’s property to determine if any should be kept from criminal investigators due to potential attorney-client or executive privilege. Trump has maintained that documents with classification markings should be included in Dearie’s review—and be available to his own legal team—because he should have the right to assert privilege over any potentially classified materials. The Justice Department (DOJ) maintains that neither Dearie nor Trump’s team needs to see to the potentially classified documents and pushed back against Trump’s claims, writing in an Oct. 11 filing that Trump “has not even attempted to explain” how he was harmed by the exclusion of the materials from Dearie’s review.
On Thursday, the Supreme Court denied Trump’s request to vacate the appeals court’s ruling, in a setback for the former President. The appeals court’s decision remains standing, meaning the documents with classification markings will not be part of Dearie’s review, will not be accessible to Trump’s legal team, and can continue to be reviewed by the FBI. The Supreme Court didn’t offer any rationale for its decision, nor were there any dissents. (Thursday’s decision likely won’t be the last time the high court is asked to weigh in on Trump’s legal woes, as a separate challenge by the Justice Department on Dearie’s appointment makes its way up the appeals process.)
“Mr. Trump just lost his last shot at keeping the classified documents away from the government,” says Bradley P. Moss, a lawyer specializing in national-security issues. “And he will never see them again unless he is indicted (and even then maybe not).”
Trump’s legal team and the Justice Department did not respond to TIME’s request for comment.
What is happening with the Mar-a-Lago documents marked ‘classified’?
On August 8, the FBI carried out an unprecedented search of Mar-a-Lago to find classified documents they believed Trump had taken from the White House. On August 26th, the Justice Department released a heavily redacted copy of the affidavit used to obtain the search warrant, which stated that the federal government has launched a criminal investigation into the “improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of recruitment records.” Officials removed over 11,000 materials from the property.
On Sept. 5, Judge Aileen M. Cannon of the Southern District of Florida—a Trump appointee—approved Trump’s request to appoint a special master to review all the seized materials and determine which could be shielded from prosecutors due to claims of privilege. On Sept. 15, Cannon named Dearie to the role, and affirmed that his review would include the documents with classification markings. Cannon also barred federal officials from working with the potentially classified documents until Dearie completed his work—which is expected to take months.
DOJ appealed Cannon’s decision to the U.S. Court of Appeals for the 11th Circuit in Atlanta, arguing it could risk “irreparable harm” to national security and intelligence interests. On Sept. 21, the 11th Circuit sided with the Justice Department, not only ruling that the documents with classification markings would be excluded from Dearie’s review, but also giving the FBI a green light to access those materials.
On Oct. 4, Trump’s team appealed that decision to the U.S. Supreme Court, asking to reinstate Dearie’s authority over the potentially classified documents. In their filing, Trump’s attorneys argued 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.”
Trump did not ask the Supreme Court to reinstall Cannon’s order blocking the FBI from accessing the documents with classification markings. The request only asked those documents be added back into Dearie’s review, arguing the appeals court lacked authority to issue its decision on procedural grounds. The Justice Department responded that Trump has “no plausible claims of ownership of or privilege” concerning the documents, meaning Dearie should not have to review them.
On Thursday, the high court did not appear swayed by Trump’s argument. The bench denied his application without any explanation. Now, as has been the case since late September, Dearie cannot look at the potentially classified materials in his review.
Are the documents actually classified?
Trump has publicly claimed that he declassified the materials found at Mar-a-Lago. In a Sept. 20 public hearing, Dearie pressed Trump’s legal team on whether they would provide any evidence for Trump’s claim. In court filings, his team has said they oppose having to disclose any “specific information regarding declassification” in the near future.
Whether the roughly 100 documents with classification markings taken from Mar-a-Lago actually are classified is a key element of DOJ’s investigation into whether Trump broke federal law by removing the materials from the White House. In an interview with Breitbart News in May, former top Trump aide Kash Patel said he had witnessed Trump declassify documents that the National Archives and Records Administration (NARA) said were identified as “classified national security information” that were shipped to Mar-a-Lago. (NARA’s tip about the materials launched the current DOJ investigation and subsequent FBI search.)
Trump’s legal team has not explicitly said that he declassified the materials while in office. But they have hinted at such a possibility in filings. In their Oct. 4 petition for the Supreme Court to reinstate Dearie’s review of the marked documents, his legal team said that “President Trump was still the president of the United States when any documents bearing classification markings were delivered to his residence in Palm Beach, Fla.”
“At that time, he was the commander in chief of the United States,” the filing continued. “As such, his authority to classify or declassify information bearing on national security flowed from this constitutional investment of power in the president.”
Presidents have broad declassification authority, but experts have expressed skepticism that Trump could declassify materials without going through the usual protocols or notifying others in the government. There is no Supreme Court ruling on what it means if a President breaks from normal declassification procedure.
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