Justice Thomas Gives DOJ Deadline After Trump Asks Court To Intervene

WASHINGTON, DC — Justice Clarence Thomas on Tuesday gave the Justice Department until Oct. 11 to respond to a petition filed by former President Donald Trump's lawyers for an emergency Supreme Court order restoring a special master's authority over classified documents seized from Trump's Mar-a-Lago estate in August.

The request escalates the dispute over the powers of the independent arbiter appointed to inspect the records, potentially making it easier for Trump to pursue his claim the documents shouldn't be used by the Justice Department to prepare a criminal case against him because they're subject to executive privilege, because he declassified them before leaving office and for other reasons.

About 100 documents with classification markings are at issue.

Last month, a three-judge panel from the Atlanta-based U.S. Court of Appeals for the 11th Circuit limited the special master's review to the much larger tranche of non-classified documents. The panel, which included 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 the classified records.

Trump lawyers Christopher Kise, James Trusty, Evan Corcoran and Lindsey Halligan said in 37-page filing to the Supreme Court 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," Politico reported.

They said it was essential the reviewer have access to the classified 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."

"Since President Trump had absolute authority over classification decisions during his Presidency, the current status of any disputed document cannot possibly be determined solely by reference to the markings on that document," the application states.

Without a review by the special master, "the unchallenged views of the current Justice Department would supersede the established authority of the Chief Executive," Trump lawyers said, arguing that an independent review ensures a "transparent process that provides much-needed oversight."

The FBI said that on Aug. 8, it seized roughly 11,000 documents, including about 100 with classification markings, during its search. Some are marked "top secret" or have even more restrictive security classifications.

In response, the Trump team asked a judge in Florida, Aileen Cannon, to appoint a special master to do an independent review of the records. She subsequently assigned a veteran Brooklyn judge, Raymond Dearie, to review and segregate those records that may be protected by attorney-client or executive privilege. Cannon also barred the FBI from using the classified documents in its criminal investigation.

The Justice Department appealed, prompting the 11th Circuit to lift Cannon's hold on investigators' ability to scrutinize the classified records. The appeals court also ruled that the department did not have to provide Dearie with access to the classified records.

The application was submitted to Thomas because he oversees emergency matters from Florida and several other Southern states. In emergency appeals, justices typically act on their own, but can also refer the matter to the full court to decide.

Thomas has previously come under scrutiny for his vote in a different Trump documents case, in which he was the only member of the court to vote against allowing the U.S. House committee investigating the Jan. 6, 2021, Capitol riot to obtain Trump records held by the National Archives and Records Administration.

Thomas’ wife, Virginia “Ginni” Thomas, is a conservative activist and staunch Trump supporter who attended the Jan. 6 “Stop the Steal” rally on the Ellipse and wrote to then-White House chief of staff Mark Meadows in the weeks following the election encouraging him to work to overturn Biden’s victory and keep Trump in office. She also contacted lawmakers in Arizona and Wisconsin in the weeks after the election.

Ginny Thomas was recently interviewed by the House committee investigating the Jan. 6 insurrection and stood by the false claim that the 2020 election was fraudulent.

The Associated Press contributed reporting.