The right wing Supreme Court majority built by ex-President Donald Trump has ruled just as conservatives had hoped on politically charged cases on abortion, climate and religion. Yet it has been far less tolerant of his efforts to block congressional investigators’ access to presidential records as well as prosecutors’ access to tax records and of his spurious election fraud claims. So Trump’s latest appeal to the nine justices in the Mar-a-Lago documents furor – another apparent delaying tactic – may be a long shot and could even backfire.
Trump on Tuesday filed an emergency application to the court to step into his dispute with the Justice Department over documents marked classified that he hoarded at the resort in Florida.
Unlike his frequently more florid and fantastical legal gambits, this one is narrow and legally nuanced – far smaller than a possible broader attempt to test an ex-president’s scope to claim executive privilege or some kind of claim that the search on his home in August was illegal. Instead, Trump wants the court to ensure that more than 100 documents designated as classified are included in a review by a third party official known as a “special master.”
The ex-President has every legal right to take such a step. But it’s also the case that Trump’s team has repeatedly sought to slow down the Justice Department’s classified documents probe in the courts, which reflects his characteristic desire to postpone accountability. In this case, any delays could push it closer to a possible Trump 2024 presidential campaign and fuel his claims of political persecution.
But, just as in other recent filings by Trump to the Supreme Court, the tactic may not work, according to legal experts.
- There is no guarantee that the court, already being dragged deep into politics, will perceive this case as bearing such vital constitutional or legal importance that failing to take it up would be a dereliction of duty.
- Even if it decides to hear the case, the court may move more swiftly than Trump hopes. Justice Clarence Thomas, for instance, on Tuesday quickly gave the Justice Department until 5 p.m. on October 11 to provide a response to Trump’s appeal.
- And Trump could simply lose – even if he persuades the justices to take the case – since to get emergency relief he must prove that he’s suffered irreparable harm in the matter, a threshold many legal experts believe is a stretch.
“The Supreme Court has not looked very kindly on former President Trump in cases that he’s brought with respect to documents and his personal property both when Congress was the one seeking information from him and other government entities were the ones seeking information from him,” said Elliot Williams, a CNN legal analyst and former Justice Department official.
“He’s pretty consistently lost those cases. And it’s not hard to see how either the court just doesn’t take this up or rules against him if they do.”