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Trump's Supreme Court gambit isn't frivolous. Why it will likely fail anyway.

Although some have suggested that this is just another effort by Trump to delay, I think it has a far simpler explanation.

The latest twist in the Mar-a-Lago affair came last Tuesday, when former President Donald Trump asked the Supreme Court to step into the ongoing litigation over the documents seized by the FBI during its Aug. 8 search. It would be easy to assume that Trump is asking the Supreme Court, three of the nine justices of which he appointed, to side with him and issue some kind of ruling that prevents the Justice Department from continuing to investigate whether classified documents were mishandled.

Trump is asking the Supreme Court for relief so small as to make it almost difficult to describe.

The reality is far more modest. Trump is asking the Supreme Court for relief so small as to make it almost difficult to describe, and he’s doing it based upon an incredibly technical legal argument that is not frivolous, but is almost certainly a loser. Simply put, because his lawyers are (smartly) sticking to plausible legal arguments rather than the conspiratorial fantasies of their client and his supporters, the Supreme Court foray is likely to amount to very little — even in the unlikely event that it succeeds.

To understand Trump’s appeal we have to start with the Labor Day ruling by District Judge Aileen Cannon. The ruling had two major features. First was the appointment of a special master (with the parties later agreeing to the selection of federal Judge Raymond Dearie) to review the documents seized at Mar-a-Lago and resolve any claims of privilege. Second was an injunction barring the Justice Department from reviewing or relying upon any of the seized documents until and unless Dearie completed his review. DOJ appealed that order, and it asked the federal appeals court — the Atlanta-based 11th Circuit — for a partial stay of Cannon’s injunction while that appeal unfolded. Specifically, DOJ singled out those documents that were marked as “classified” and asked the appeals court to allow it to continue doing whatever it was doing with those materials instead of having them first go to Dearie.

On Sept. 21, a three-judge panel of the Court of Appeals (including two Trump appointees) unanimously sided with DOJ and froze the part of Cannon’s order that had blocked DOJ from utilizing the classified materials. Indeed, the Court of Appeals went even further, suggesting that Cannon’s underlying ruling was itself flawed. By dint of that ruling, Cannon’s injunction was frozen as to the classified documents, and Dearie’s review was set to continue without them. In response, Cannon modified her order to exclude the classified documents (more on why this matters in a moment).

Thus, although DOJ was still seeking to eventually challenge the rest of Cannon’s Sept. 5 ruling on appeal, the Sept. 21 intervention by the 11th Circuit lowered the temperature of the broader dispute; that appeal could run its course while DOJ continued to do … whatever it is doing with the materials it seized from Mar-a-Lago.

Although there was widespread speculation that Trump would seek immediate review of the 11th Circuit’s ruling in the Supreme Court, his lawyers instead waited almost two weeks before finally asking the justices to intervene. But the filing — an application to “vacate” the 11th Circuit’s stay of Cannon’s injunction — does not challenge most of the 11th Circuit’s ruling. Instead, its argument is that the 11th Circuit only had the authority to stay the injunction (that is, to allow DOJ to proceed). The 11th Circuit, Trump’s lawyers claim, did not also have the authority to keep classified documents away from Dearie. In other words, Trump isn’t challenging the heart of the Court of Appeals’ decision; he’s challenging one of its marginal implications.

The legal theory behind this argument rests on a technical concept called “pendent appellate jurisdiction.” To make a long story short, although most appeals in federal courts come at the end of a case, there are a few types of “interlocutory” (mid-proceeding) trial court rulings that courts of appeals are allowed to review immediately. One example of such an order is a ruling that grants or denies an injunction — like Cannon’s Labor Day decision in Trump’s case.

Trump’s lawyers say the 11th Circuit did not have appellate jurisdiction to pass judgment on which documents should and should not be reviewed by Dearie. As legal arguments go, it’s pretty technical, but it also isn’t frivolous; it’s possible to understand the claim that it wasn’t necessary, in staying Cannon’s injunction against DOJ, for the Court of Appeals to also limit what Dearie could review.

But there are three problems with this argument, any one of which is grounds enough for the Supreme Court to reject it.

First, on the merits of the jurisdictional argument, Trump’s lawyers are focused on the wrong statute, and a different kind of midstream appeal. The Supreme Court has held that, when defendants appeal injunctions (like DOJ did here), the court of appeals can review the entire order, and not just the injunction. In other words, at least under current law, the appeals court had the power to review every aspect of Cannon’s order.

Second, even if the issues have to be “inextricably intertwined” — the standard Trump’s team is trying to argue — DOJ has a very good argument that they are. After all, how can DOJ have full access to the classified materials that were seized if Dearie is also entitled to consider them? If the point of the Court of Appeals’ ruling was to carve the classified materials out of the special master’s review (which is also what Cannon’s amended order does), then it’s more than a little dubious that the two issues are so easily separated.

Third, and in any event, Trump isn’t asking the Supreme Court for a full review on the merits; he’s asking for emergency intervention through the shadow docket — an interim ruling to block part of the Court of Appeals’ decision while the rest of the case plays out. In that context, whether Trump is right about the Court of Appeals’ jurisdiction is just one of the things the Supreme Court is supposed to consider. Trump is also required to show that the Court of Appeals’ ruling is causing him “irreparable harm.” That’s what would justify intervention by the Supreme Court before the rest of the proceeding runs its course. Not only does his application nowhere explain how he is irreparably harmed, but it’s really difficult to see how, even if he’s right about the Court of Appeals’ jurisdiction, that ruling is harming him in ways that can’t be fixed later.

Cannon’s own unusual amendment of her original order — which carves out classified information from what Dearie is supposed to review — seems to be the final nail in the coffin. After all, even if Trump wins in the Supreme Court, it’s not clear that Dearie can consider the classified materials in light of Cannon’s modifications.

Cannon’s own unusual amendment of her original order seems to be the final nail in the coffin.

All of this is to say that Trump is almost certain to lose this round. That’s nothing new; the Supreme Court has been skeptical of virtually every request by Trump to intervene in a dispute over his personal conduct, including the 2020 cases involving congressional and grand jury subpoenas for his financial records, and the refusal in January of this year to block the National Archives and Records Administration from turning materials over to the House Jan. 6 committee.

So why all the fuss? Although some have suggested that this is another effort by Trump to delay, I don’t buy it; the 11th Circuit’s ruling is currently in effect, and DOJ is able to do whatever it wants to do at this moment (and until and unless the Supreme Court rules otherwise). Rather, I think it has a far simpler explanation: Trump demanded that his lawyers take this case to the Supreme Court, and they found the one argument they could make that was not factually or legally frivolous. That doesn’t mean it’s a winner, but it’s a pretty powerful sign of how much the rest of Trump’s arguments are even worse than losers.