SCOTUS Rejects Trump Gambit To Delay DOJ Investigation Of His Theft Of Classified Documents

NBC News reports, Supreme Court rejects Trump’s request in dispute over Mar-a-Lago documents:

The Supreme Court handed former President Donald Trump a loss Thursday in his dispute with the Justice Department over documents seized from his Mar-a-Lago residence, rejecting his request that a special master be allowed to review classified papers.

BREAKING: SCOTUS denies his attempt to reinstate Judge Cannon order Re Special Master. The court had two words for Trump’s petition: DE- NIED. https://t.co/lNwdNVJxz8

— Andrew Weissmann (weissmann11 on Threads)🌻 (@AWeissmann_) October 13, 2022

The justices denied Trump’s relatively narrow emergency request in a brief unsigned order. There were no noted dissents.

The decision does not affect the Justice Department’s access to the same documents as part of a criminal investigation. The more than 100 documents marked as classified are just a small portion of the 11,000 records seized by federal agents in August amid concerns that Trump had unlawfully retained official White House records after leaving office.

The high court left in place part of a Sept. 21 decision by the 11th U.S. Circuit Court of Appeals that barred the special master, federal Judge Raymond Dearie, from reviewing the documents. Trump had not contested the separate part of that ruling allowing the Justice Department to use the documents.

The appeals court said certain documents are deemed classified because they contain information that could harm the national security, and for that reason people may have access to them only if they need to know that information.

Trump’s lawyers had said the decision to block Dearie’s access “impairs substantially the ongoing, time-sensitive work of the special master.” They 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.”

Solicitor General Elizabeth Prelogar, on behalf of the Justice Department, said in court papers that Trump would suffer “no harm at all” if the documents are temporarily withheld from the special master. Addressing Trump’s potential ownership stake in the documents, including possible assertions of attorney-client privilege of executive privilege, Prelogar said Trump had “no plausible claims.”

Trump sued the government after the August search of Mar-a-Lago, seeking to prevent the government from using them as part of a criminal investigation and asking for the appointment of a special master to review the documents.

Under federal law, official White House papers are federal property and must be handed over to the National Archives when the president leaves office. Trump says he did nothing improper and wants Dearie to determine the status of documents marked classified. Trump himself has said he had the power to declassify documents at will, although whether or not they are classified is a separate question from the legality of his holding on to presidential records.

Last week, the U.S. Court of Appeals for the 11th Circuit sided with the Justice Department and agreed to expedite its briefing schedule over the decision to appoint a special master. Appeals Court Grants DOJ Request to Expedite Special Master Appeal in Mar-a-Lago Document Case:

A federal appeals court sided with the Justice Department on Wednesday, granting its request to expedite an appeal of the appointment of a special master to review the documents recovered by the FBI from former President Donald Trump’s Florida estate.

The Justice Department last week asked the U.S. Court of Appeals for the 11th Circuit to expedite its consideration of the government’s appeal of District Judge Aileen Cannon’s move to grant Trump a special master to review the seized materials, while barring the government’s review of thousands of documents, arguing that the move is harmful to its criminal investigation.

The government argued that barring its review of the thousands of remaining documents harms its investigation, though maybe to a lesser degree than the documents marked as classified that the appeals court granted it access to last month. In the filing, the Justice Department wrote that it is “unable to examine records that were commingled with materials bearing classified markings,” some of which may shed light on how the materials were transferred, stored and who may have had access.

The 11th Circuit on Wednesday outlined that the briefing schedule, which was slated through mid-December, will now be fast-tracked to conclude by mid-November.

The Special Master’s deadine is now December 16. Trump Special Master Deadline Extended to Dec. 16 by Judge:

US District Judge Aileen Cannon, citing delays in hiring a vendor to scan the 11,000 documents at issue, ruled in an order Thursday that the special master overseeing the review, US District Judge Raymond Dearie, would have until Dec. 16 to complete his work. Dearie originally faced a Nov. 30 deadline.

[Judge Dearie’s] review will not include roughly 100 documents that the government says contain classified markings following a federal appeals court ruling that sided with the Justice Department on that issue. [And now the U.S. Supreme Court.]

Dearie had proposed having the parties go through the remaining 11,000 documents — totaling approximately 200,000 pages, according to Trump’s lawyers — and identify disputes over how to categorize the materials on a rolling basis, laying out a schedule that called for the documents to be divided into batches.

Cannon disagreed with the veteran jurist’s approach, instead directing Trump’s lawyers to take three weeks to go through all of the documents and submit one comprehensive list of how they would characterize them to the government. That timeline would take the review into early November.

A single log from Trump would “avoid confusion and enhance organization and clear deadlines,” Cannon wrote.

Once Trump gives that list to the government, Cannon gave the parties 10 days to meet and decide where they agree and where they don’t, and then submit a list of disputes to Dearie. The special master will go through those disputes and prepare a report with recommendations to the Cannon, who will make the final call about whether any documents should be shielded from investigators.

The criminal grand jury sitting in this case can be convened on short notice to consider an indictment for violations of the Presidential Records Act and the Espionage Act, and for obstruction of justice.

I would really like this for a Christmas present this year, but it will probably come next year.

Franklin Foer at The Atlantic  writes, THE INEVITABLE INDICTMENT OF DONALD TRUMP (excerpt):

[T]his is what I believe he is preparing himself to do.

I have been observing Garland closely for months. I’ve talked with his closest friends and most loyal former clerks and deputies. I’ve carefully studied his record. I’ve interviewed Garland himself. And I’ve reached the conclusion that his devotion to procedure, his belief in the rule of law, and in particular his reverence for the duties, responsibilities, and traditions of the U.S. Department of Justice will cause him to make the most monumental decision an attorney general can make.

Let me be absolutely clear: Garland did not tell me he was going to indict Donald Trump. In fact, he did not tip his hand to me in any way—he is far too cautious to signal his intentions to even his closest friends, much less a reporter. Nor did his top aides suggest the announcement of an indictment. When his department says that it doesn’t discuss ongoing cases, it means it—at least in this case.

* * *

[A]n indictment, of course, would merely be the first step—a prelude to a trial unlike any this country has ever seen. The defendant wouldn’t just be an ex-president; in all likelihood, he’d be a candidate actively campaigning to return to the White House. Fairness dictates that the system regard Trump as it does every other defendant. But doing so would lead to the impression that he’s being deliberately hamstrung—and humiliated—by his political rivals.

Garland is surely aware that this essential problem would be evident at the first hearing. If the Justice Department is intent on proving that nobody is above the law, it could impose the same constraints on Trump that it would on any criminal defendant accused of serious crimes, including limiting his travel. Such a restriction would deprive Trump of one of his most important political advantages: his ability to whip up his followers at far-flung rallies.

In any event, once the trial began, Trump would be stuck in court, likely in Florida (if he’s charged in connection with the Mar-a-Lago documents matter) or in Washington, D.C. (if he’s charged for his involvement in the events of January 6). The site of a Washington trial would be the Prettyman Courthouse, on Constitution Avenue, just a short walk from the Capitol. This fact terrified the former prosecutors and other experts I talked with about how the trial might play out. Right-wing politicians, including Trump himself, have intimated violence if he is indicted.

In any event, once the trial began, Trump would be stuck in court, likely in Florida (if he’s charged in connection with the Mar-a-Lago documents matter) or in Washington, D.C. (if he’s charged for his involvement in the events of January 6). The site of a Washington trial would be the Prettyman Courthouse, on Constitution Avenue, just a short walk from the Capitol. This fact terrified the former prosecutors and other experts I talked with about how the trial might play out. Right-wing politicians, including Trump himself, have intimated violence if he is indicted.

Trump would of course attempt to make the proceedings a carnival of grievance, a venue for broadcasting conspiracy theories about his enemies. The trial could thus supply a climactic flash point for an era of political violence. Like the Capitol on January 6, the courthouse could become a magnet for paramilitaries. With protesters and counterprotesters descending on the same locale, the occasion would tempt street warfare.

The prospect of such a spectacle fills Merrick Garland with dread, his friends say. Indeed, for much of his tenure he’s been attacked by critics who claim he lacks the fortitude to meet the moment, or to take on an adversary like Trump. Members of the House committee charged with examining the events of January 6 have publicly taunted Garland for moving tentatively when compared with their own aggressive and impeccably stage-managed hearings. Representative Adam Schiff has complained, “I think there’s a real desire on the part of the attorney general, for the most part, not to look backward.” Privately, even President Joe Biden has grumbled about the plodding pace of Garland’s investigations.

But I believe, if the evidence of wrongdoing is as convincing as it seems, he is going to indict Trump anyway.

Over the course of my reporting, I came to appreciate that the qualities that strike Garland’s critics as liabilities would make him uniquely suited to overseeing Trump’s prosecution. The fact that he is strangely out of step with the times—that he is one of the few Americans in public life who don’t channel or perform political anger—equips him to craft the strongest, most fair-minded case, a case that a neutral observer would regard as legitimate.

United States v. Donald Trump would be about more than punishing crimes—whether inciting an insurrection, scheming to undermine an election, or absconding with classified documents. An indictment would be a signal to Trump, as well as to would-be imitators, that no one is above the law. This is the principle that has animated Garland’s career, which began as the Justice Department was attempting to reassert its independence, and legitimacy, after the ugly meddling of the Nixon years. If Garland has at times seemed daunted by the historic nature of the moment, that is at least in part because he appreciates how closely his next move will be studied, and the role it will play in heading off—or not—the next catastrophe.

[T]he Merrick Garland who took over the Justice Department may have hoped he could restore its reputation without confronting Trump, or dragging him to a courtroom. But the nation has changed in the intervening months, and so has he.