Former US president Donald Trump petitioned the Supreme Court Tuesday as part of his ongoing dispute with the Department of Justice (DOJ) over documents seized at Mar-a-Lago.
The DOJ executed a search warrant at Mar-a-Lago in August, seizing roughly 11,000 documents. This dispute involves 103 of those documents bearing classification markings.
On August 22, Trump’s counsel filed a motion for judicial oversight and additional relief, seeking the appointment of a special master to review the seized documents, to enjoin the government from reviewing the materials until a special master was appointed, and to return items in excess of the search warrant. A federal judge issued an order September 5 authorizing the appointment of a special master and preventing the government from reviewing the documents without a classification marking. Following this order, the DOJ moved for a partial stay of the September 5 order so the government could review the seized documents for criminal investigative purposes. On September 15, the district court denied the government’s partial stay motion, and entered the Special Master Order, appointing Raymond Dearie as special master.
On September 16, the DOJ filed a motion for partial stay pending appeal in the US Court of Appeals for the Eleventh Circuit. On September 21 the Eleventh Circuit granted the DOJ’s motion, finding it had jurisdiction pursuant to 28 USC § 1292(a)(1). The Eleventh Circuit found that the order appointing a special master was “otherwise nonappealable” but subject to review because “it was inextricably intertwined with an appealable order, or was necessary to ensure meaningful review of an appealable decision.”
In a nearly 300-page filing to the Supreme Court, Trump’s counsel allege that the government’s September 16 motion did not identify a basis for the Eleventh Circuit’s appellate jurisdiction and that the Eleventh Circuit did not have jurisdiction because the appointment of a special master is a procedural order. Because procedural orders are not subject to interlocutory review, the requirements of 28 USC § 1292(b) have not been met and therefore the Eleventh Circuit did not have jurisdiction to grant the government’s September 16 motion for partial stay pending appeal.
Trump is asking the Supreme Court to vacate the Eleventh Circuit’s September 21 stay order and to prevent the government from reviewing even documents bearing classification markings prior to the special master’s review.