As I mentioned last month, Donald Trump's quixotic quest to block the Justice Department's investigation into his trove of illegally held classified documents will now be going to the Supreme Court, or it would, if Trump's lawyers were actually arguing that.
Former President Donald J. Trump asked the Supreme Court on Tuesday to intervene in the litigation over sensitive documents that the F.B.I. seized from his Florida estate, saying that an appeals court had lacked jurisdiction to remove them from a special master’s review.
But Mr. Trump’s lawyers did not ask the Supreme Court to overturn the most important part of the appeals court’s intervention: its decision to free the Justice Department to continue using documents with classification markings in its criminal investigation of Mr. Trump’s handling of government records.
The new filing was technical, saying that the U.S. Court of Appeals for the 11th Circuit, in Atlanta, had not been authorized to stay aspects of a judge’s order appointing a special master to review all materials that the F.B.I. had seized in its search of Mr. Trump’s residence, Mar-a-Lago.
“The 11th Circuit lacked jurisdiction to review the special master order, which authorized the review of all materials seized from President Trump’s residence, including documents bearing classification markings,” the application said.
The court requested a response from the Justice Department by 5 p.m. next Tuesday.
Even were Mr. Trump to prevail, his victory would be distinctly modest. It would merely allow the special master to review those documents even as the Justice Department continues its work.
Although the Supreme Court is dominated by six conservative justices, three of them appointed by Mr. Trump, it has rejected earlier efforts to block the disclosure of information about him, and legal experts said Mr. Trump’s new emergency application faced significant challenges.
Stephen I. Vladeck, a law professor at the University of Texas, said Mr. Trump was pursuing a limited and curious litigation strategy in trying to reinstate part of a ruling from Judge Aileen M. Cannon of the Southern District of Florida.
Mr. Trump’s application, Professor Vladeck said, presented “technical procedural questions on which the justices may be even less likely to be sympathetic to the former president.”
In other words, the Trumpies are arguing over how much should be included in Special Master Raymond Dearie's review, not over blocking the investigation. The former is likely to grant Trump additional months to delay the investigation, and the latter means nothing's going to happen until after the midterms.
We'll see how this shakes out, but don't be surprised if we get a shadow docket unsigned order from SCOTUS next week in Trump's favor.