By ERIC TUCKER Associated Press
WASHINGTON (AP) — Lawyers for former President Donald Trump asked the U.S. Supreme Court Tuesday to intervene in the legal fight over classified documents seized during an FBI search of his Florida estate, intensifying a dispute over the powers of an independent arbitrator appointed to inspect the records.
The Trump team asked the justices to overturn a lower court ruling and allow the arbitrator, called a special master, to review the roughly 100 documents with classification marks that were taken in the search for Mar-a-Lago on March 8. August.
Last month, a three-judge panel of the Atlanta-based US Court of Appeals for the 11th Circuit limited the special master’s review to the much larger tranche of unclassified documents. The judges, including two Trump appointees, sided with the Justice Department, which had argued there was no legal basis for the special master to conduct his own review of classified records.
But Trump’s lawyers said in their Supreme Court application that it was essential that the special master have access to the classified records to “determine whether documents bearing classification marks are in fact classified and, regardless of classification, whether those Records are personal records. or presidential records.”
“Since President Trump had absolute authority over classification decisions during his presidency, the current status of any disputed document cannot be determined solely by reference to the markings on that document,” the petition states.
It says that without the special master review, “the uncontested views of the current Justice Department would supersede the established authority of the Chief Executive.” An independent review, the Trump team says, ensures a “transparent process that provides much-needed oversight.”
The FBI says it seized approximately 11,000 documents, including about 100 with classification marks, during its search. Trump’s team asked a Florida judge, Aileen Cannon, to appoint a special master to conduct an independent review of the records.
Cannon subsequently assigned a veteran Brooklyn judge, Raymond Dearie, to review the records and segregate those that may be protected by claims of attorney-client privilege and executive privilege. He also prohibited the FBI from using the classified documents as part of its criminal investigation.
The Justice Department appealed, prompting the Eleventh Circuit to lift Cannon’s hold on investigators’ ability to examine classified records. The appeals court also ruled that the department did not have to provide Dearie with access to the classified records.
Trump’s lawyers submitted the Supreme Court request to Justice Clarence Thomas, who oversees emergency matters for Florida and several other southern states. Thomas can act on his behalf or, as is usually done, refer the emergency appeal to the rest of the court. On Tuesday night, the court said the government was required to respond to the petition by Oct. 11.
Thomas has previously come under scrutiny for his vote in a different Trump papers case, in which he was the only court member to vote against allowing the US House committee investigating the Capitol Riot of January 6, 2021 obtain the records from the National Archives and Records Administration.
Thomas’s wife, Virginia “Ginni” Thomas, is a conservative activist and staunch Trump supporter who attended the January 6 “Stop the Steal” rally at the Ellipse and wrote to then-White House chief of staff Mark Meadows, in the weeks after the election encouraging him to work to overturn Biden’s victory and keep Trump in office. She also reached out to lawmakers in Arizona and Wisconsin in the weeks after the election. Thomas was recently interviewed by the House committee investigating the January 6 insurrection and she defended the false claim that the 2020 election was rigged.
Associated Press writers Mark Sherman and Jessica Gresko contributed to this report.
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