Trump’s latest delay tactics on the Mar-a-Lago documents may not work in the Supreme Court



CNN

If at first you don’t succeed, try, try again.

The right-wing Supreme Court majority built by former President Donald Trump has ruled as conservatives had hoped in political cases involving abortion, climate change and religion. However, he has been less tolerant of efforts to block congressional investigators’ access to presidential records, as well as prosecutors’ access to tax records and claims of election fraud. So Trump’s latest appeal to the nine judges in the Mar-a-Lago docket announcement — another apparent delaying tactic — may be far-fetched and could backfire.

Trump filed an emergency motion in court on Tuesday to join a dispute with the Justice Department over classified documents stored at the Florida resort.

Unlike his often more flowery and fanciful legal ramblings, this one is narrow and legally nuanced — much less the former president’s choice to invoke executive privilege or a broader attempt to claim that his home was raided in August. illegal Instead, Trump wants the court to ensure that more than 100 documents designated as classified are included in the review by a third-party official known as a “special master.”

The former president has every legal right to take that step. But Trump’s team has repeatedly tried to slow the Justice Department’s review of classified documents in court, reflecting his characteristic desire to delay accountability. In this case, any delay could push Trump closer to a possible 2024 presidential campaign and fuel claims of political harassment.

But, as in Trump’s other recent Supreme Court filings, the tactic may not work, according to legal experts.

  • There is no guarantee that the court, already involved in politics, will perceive this issue to be of such constitutional or legal importance that not to take it would be an abdication of duty.
  • Even if it decides to hear the case, the court may move more quickly than Trump expects. Justice Clarence Thomas, for example, on Tuesday quickly gave the Justice Department until 5:00 p.m. on October 11 to respond to Trump’s appeal.
  • And Trump could lose, even if he convinces the judges to take up the case, because he must prove that he has suffered irreparable harm on the issue of emergency aid, a threshold that many legal experts believe is a stretch.

“The Supreme Court has not been very kind to former President Trump in the cases he’s brought about documents and his personal assets, both when Congress was seeking information from him and when other government agencies were seeking information from him,” he said. Elliot Williams, CNN legal analyst and former Justice Department official.

“He’s lost those cases quite consistently. And it is not difficult to see how the court either does not take this or judges against him, if they do.’

Trump has built a personal record of frustration with the Supreme Court.

In January, the court refused to block the release of 700 documents from the National Archives that the House select committee looking into the U.S. Capitol rebellion said it needed for its investigation. The Supreme Court rejected the challenges to the 2020 elections several times. The court also ruled that the then-president was not immune from a New York subpoena seeking his tax records in a criminal investigation.

Trump has long believed that the judges he appoints owe him loyalty. He appointed three of the nine Supreme Court justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

And he has usually reacted badly in his defeats to the upper bench. In December 2020, for example, he tweeted that the court had failed and had shown neither the wisdom nor the courage to reject an election challenge.

But even the sometimes humiliating court defeats can bring Trump other benefits.

While it’s too early to predict how the court will handle this case, bringing it up to them works in a number of political ways for Trump.

It keeps him in the news and creates a feeling among his supporters that he is being treated unfairly. As in this case, Trump often substitutes policy or a strong legal public relations strategy. And it wouldn’t be surprising to see Trump raise money from his emergency request.

His latest move is in line with the legal system’s habit of slowing down or obfuscating a case every possible way. Taking it a step further, CNN legal analyst Steve Vladeck suggested that the judge’s request was, in part, an attempt by his team to satisfy a very litigious client.

“This is what good stuck lawyers do to appease bad clients: the jurisdictional argument is narrow, technical and non-frivolous. It’s a way to present *something* to the Supreme Court without going crazytown and/or acting unethically,” University of Texas law professor Vladeck wrote on Twitter.

Specifically, Trump’s emergency request does not require the Supreme Court’s hold on access to those classified documents by District Judge Aileen Cannon, a court judge he appointed, to the Justice Department while it investigates his detention at Mar-a-Lago.

Instead, it wants to include the classified documents at issue in the special master’s review after the 11th Circuit Court of Appeals sided with the DOJ and exempted it from the review process.

The department argued that including those documents in the special master’s examination would harm national security.

But Trump’s team pushed back, saying in Tuesday’s filing that that position “cannot be reconciled” with the DOJ saying it wants to show those documents to a grand jury or witnesses in interviews.

And the petition opened with a highly political argument – saying the “unprecedented circumstances” of the case represented an “investigation” of the forty-fifth president of the United States by the administration of his political rival and successor, which took great liberties. The facts of the Mar-a-Lago case.

That reason seemed “skinny” to former White House adviser John Dean.

“I didn’t see much of an emergency,” Dean, who was at the center of the Watergate scandal that brought down President Richard Nixon, told CNN’s Anderson Cooper on Tuesday.

“The arguments are very technical and not something the Supreme Court, given their current position in public opinion, would like to enter into.”