The Supreme Court handed down a very brief, unsigned order on Thursday denying former President Donald Trump’s most recent attempt to undermine a criminal investigation into classified documents that the FBI recovered from Mar-a-Lago, Trump’s Florida residence.
Technically, the litigation over the documents seized by the FBI — a lawsuit known as Trump v. United States — remains ongoing. But Trump already suffered a big loss in a federal appeals court, which restored the FBI’s ability to criminally investigate him. And even if Trump had prevailed in the Supreme Court, which he did not, his lawyers sought such a narrow modification of the appeals court’s order that it’s unclear how this modification would have mattered.
This all began in August, when the FBI seized several boxes from Mar-a-Lago, including 103 documents with classified markings, as part of an investigation into potential violations of the Espionage Act, among other things. Last month, Judge Aileen Cannon, a Trump appointee to a federal trial court in Florida, appointed another federal judge as a “special master” to review the seized documents and help determine whether some of them are protected by attorney-client or executive privilege.
Significantly, Cannon also prohibited the FBI from using the seized classified documents in a criminal investigation against Trump.
Cannon’s order appointing senior federal Judge Raymond Dearie as a special master remains in effect, as does her order instructing Dearie to screen any nonclassified documents seized from Mar-a-Lago. But, in late September, a federal appeals court blocked the parts of Cannon’s order that prevented the FBI from continuing its criminal investigation.
That appeals court decision, which was joined by two judges also appointed by Trump, was extraordinarily dismissive of Cannon’s original order — pointing out over a dozen errors in Cannon’s reasoning. Among other things, the appeals court faulted Cannon for suggesting that a former government official could have a personal interest in retaining classified documents, and it also criticized Cannon for ordering the government to show these documents to people who do not need to know the information contained in them.
In the Supreme Court, Trump’s lawyers filed a bizarre application asking the Court to reinstate the parts of Cannon’s order that required Dearie to review the classified documents, but not the parts of her original order that halted the criminal investigation into Trump. It’s unclear how, exactly, Trump hoped to benefit from such limited relief.
In any event, he won’t receive even the very narrow relief he sought from the justices. No justice publicly indicated his or her dissent from the Court’s order denying relief to Trump — not even Justice Clarence Thomas, who previously dissented from the Court’s decision to allow the US House committee investigating the January 6, 2021, attack on the Capitol to obtain certain Trump White House documents.
This decision and the previous decision in the January 6 committee case suggest that the Supreme Court will not take extraordinary steps to protect Trump from investigations now that he is no longer president.
Before Trump left office, the Court handed him a significant victory in Trump v. Mazars (2020), which effectively shielded him from a House investigation into his personal finances until after the 2020 election. That decision, which departed from previous decisions holding that the House has broad authority to conduct such investigations, suggested that the Court — which is dominated by Republican appointees — was unusually protective of Trump while he remained president.
But the justices have now twice signaled that they will not protect Citizen Trump in the same way they did President Trump.
Thursday’s Supreme Court order is also almost certainly the end of the line for Trump’s efforts to sabotage the Mar-a-Lago investigation by convincing Cannon to micromanage it. Again, while Cannon’s appointment of Dearie remains valid, the DOJ now has full access to the classified documents that allegedly incriminate Trump.
And it’s not even clear that any of the nonclassified documents that will still be reviewed by Dearie are relevant to any potential criminal charges against Trump. So, while the need to work with Dearie (and Cannon) may prove to be an ongoing headache for Justice Department lawyers, it is unlikely to impact the DOJ’s ability to bring criminal charges against Trump should it choose to do so.