If you don’t succeed at first, try and try again.
The ruling by the right-wing Supreme Court majority established by former President Donald Trump did just as conservatives hoped to rule on politically charged cases involving abortion, climate and religion. However, it has been far less tolerant of his efforts to prevent congressional investigators from accessing presidential records and prosecutors from accessing tax records and his false allegations of election fraud. So Trump’s recent appeal to nine justices at Mar-a-Lago — another apparent delaying tactic — may be a lofty goal and may even backfire.
Trump filed an emergency application with the court on Tuesday to intervene in his dispute with the Justice Department over his hoarding of classified documents at his Florida resort.
Unlike his often garish and whimsical legal tactics, this one is narrow and legally nuanced — far smaller than a possibly broader attempt to test the scope of the former president’s claim for executive privilege or some sort of claim to search him in August. Home is illegal. Instead, Trump wants the court to ensure that more than 100 documents designated as classified are included in the review by third-party officials known as “special masters.”
The former president has every legitimate right to take such a step. But it’s also a case of Trump’s team’s repeated attempts to slow the Justice Department’s investigation of classified documents in court, reflecting his characteristic desire to delay accountability. In this case, any delay could bring it closer to a possible Trump 2024 presidential campaign and fuel what he claims is a witch hunt.
But, like Trump’s other recent Supreme Court filings, that strategy may not work, according to legal experts.
- There is no guarantee that a court, already embroiled in politics, will consider the case to be of such critical constitutional or legal importance that it would be dereliction of duty to dismiss it.
- Even if it decides to hear the case, the court may act sooner than Trump hopes. On Tuesday, for example, Justice Clarence Thomas quickly gave the Justice Department until 5 p.m. on Oct. 11 to respond to Trump’s appeal.
- Trump may only lose — even if he persuades a judge to take up the case — because to get emergency relief he would have to prove he suffered irreparable harm in the matter, a threshold that many legal experts consider a bit far-fetched.
“The Supreme Court’s case against former President Trump regarding documents and personal property, with Congress seeking his information and other government entities seeking information from him, has not treated him very kindly,” said Elio Te Williams, CNN legal analyst and former Justice Department official.
“He’s been losing these cases. It’s not hard to see that if they did, the court would either not accept it or rule against him.”
Trump has built a personal record of defeat in the Supreme Court.
In January, a court refused to block the National Archives’ handover of 700 documents, and the House select committee investigating the U.S. Capitol riots said an investigation was needed. The Supreme Court has repeatedly dismissed challenges to the 2020 election. The court also ruled that the then-president was not immune to a New York subpoena in a criminal investigation seeking his tax records.
Trump has long seemed to believe that the judges he appoints owe him loyalty. He nominated three of the nine Supreme Court justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
And he usually reacts badly to his failures in front of the top bench. For example, in December 2020, he tweeted that the court had let him down and had neither the wisdom nor the courage to dismiss the challenge to the election.
But sometimes even a humiliating court failure has other benefits for Trump.
While it’s too early to predict how the court will handle the case, taking it to them has multiple political implications for Trump.
That kept him in the news and stoked a feeling among his supporters that he was being treated unfairly. In such cases, Trump often substitutes a strong legal strategy with a political or public relations strategy. It’s no surprise to see Trump raising funds in response to his urgent request.
His latest move is also in line with his habit of using every possible avenue in the legal system to slow or confuse cases. Going further, CNN legal analyst Steve Vladeke suggested that the application to the court was in part his team’s attempt to appease a highly litigious client.
“This is what good lawyers in trouble do to appease bad clients: the jurisdictional arguments are narrow, technical, and non-frivolous. It’s a way of filing *something* in the Supreme Court without Go all the way to Crazy Town and/or act unethically,” University of Texas law professor Vladeke tweeted.
Specifically, Trump’s emergency request did not ask the Supreme Court to reinstate his nominee, District Court Judge Aileen Cannon, on the Justice Department’s access to the documents, marked classified, as it investigated them. Reservations at Mar-a-Lago.
Instead, he hopes to include the controversial classified documents in the special director’s review after the 11th Circuit Court of Appeals upheld the DOJ and exempted it from the review process.
The department had argued that including the documents in the special main review would compromise national security.
But Trump’s team countered, saying in Tuesday’s filing that the position “cannot be reconciled with the Justice Department,” saying it may want to show the same documents to a grand jury or witnesses during interviews.
The petition begins with a highly politicized argument — claiming that the “unprecedented circumstances” of the case represent “an investigation into it by the administration of the political opponent and successor of the forty-fifth president of the United States” — a pair with the Mar-a-Lago case fact.
This reasoning left former White House adviser John Dean feeling “thin”.
“I don’t see too many emergencies,” Dean told CNN’s Anderson Cooper on Tuesday, who was at the center of the Watergate scandal that brought President Richard Nixon out of office.
“These arguments are highly technical, and I don’t think the Supreme Court would want to get involved, given their current position in public opinion.”