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Former President Trump escalates the legal battle over classified documents, again

JUANA SUMMERS, HOST:

Former President Donald Trump is yet again escalating the legal battle over classified documents that he kept at his Mar-a-Lago home. His lawyers have filed an emergency request asking the United States Supreme Court to intervene and to let a special master review some of those documents which the FBI seized back in August. We're joined now by Steve Vladeck, who's a law professor at the University of Texas at Austin, as well as a federal courts expert. Welcome back, Steve.

STEVE VLADECK: Thanks for having me.

SUMMERS: So if you can, remind us briefly why the former president's legal team is yet again asking for the special master in this case.

VLADECK: Yeah, so, I mean, it's hard to keep track of the 37 layers here. But basically the 11th Circuit - the federal appeals court in Atlanta - had issued a stay, had basically frozen Judge Cannon's order from Labor Day - the order that had required the appointment of a special master and that had blocked it, and joined the Justice Department from relying on from using the 100 or so classified documents that it obtained during the search of Mar-a-Lago. What the 11th Circuit said in its stay was, you know, Judge Cannon, you shouldn't have blocked DOJ. You should have allowed them to do their thing. And that also had the effect of keeping those 100 or so documents out of Judge Dearie's hands, the special master. So what Trump is asking the Supreme Court to do is basically sort of thread the needle. He's not asking the court to once again stop DOJ from doing whatever it's doing. He's just asking the court to also let those documents go back before Judge Dearie.

SUMMERS: And this application, Steve - I understand it is nearly 300 pages long, and you have started to take a look at it. From what you've seen so far, what is your biggest takeaway?

VLADECK: I think the biggest takeaway one is that it's modest, right? This is not President Trump asking the Supreme Court to weigh in on anything about the search. This is not President Trump asking the Supreme Court to weigh in on anything about, like, the merits of, you know, his potential criminal exposure for the documents he had at Mar-a-Lago. He's basically asking the Supreme Court for a teeny, tiny sliver of relief, which is that the 100 or so classified documents picked up in the search should also, he says, go back before Judge Dearie as part of this special master review of the materials.

And part of why it's so important to stress how modest this is, is because it's also not clear how President Trump is being harmed by the 11th Circuit's ruling that he's now objecting to, which is supposed to be a predicate to getting the Supreme Court to step in in this kind of emergency posture. So it's a very technical argument. It's a very modest argument. And even if it succeeds, it's really not going to change that much on the ground.

SUMMERS: OK, so then what are the next steps for the Supreme Court, and how likely would you say that it is that the Trump legal team might get its way here?

VLADECK: Yeah, so the application technically goes to Justice Clarence Thomas because he is the assigned circuit justice for all applications coming out of the Atlanta-based federal appeals court. You know, I think Justice Thomas will refer the application to the full court - that is the norm in divisive cases - even if he might be sympathetic to the claims. And then I think the next step would be, once there's been briefing from the Justice Department, for the justices to issue a - you know, a very cryptic ruling - want to probably deny him the application.

I mean, it's really important to stress that this is not a sort of substantive question for the Supreme Court to decide about the validity of the search. It's a technical question about whether the 11th Circuit was in a position at the time it issued its stay to, you know, keep some of these documents away from Judge Dearie. I'm not sure President Trump has a good claim on the merits, and I think there's an even bigger procedural obstacle, which is why even this court - a court that I think folks expect to be sympathetic to President Trump - I think is very unlikely to side with him here.

SUMMERS: In the 20 seconds we've got left, anything you can tell us about what this means for a DOJ investigation into what the former president did with these documents?

VLADECK: Yeah, I mean, I think the short answer is it doesn't mean anything - that the most important thing the 11th Circuit did in its ruling was to put that investigation back on course. And nothing the Supreme Court could do on this application is going to stop that.

SUMMERS: Steve Vladeck, professor of law at the University of Texas at Austin, thank you so much.

VLADECK: Thank you. Transcript provided by NPR, Copyright NPR.

Juana Summers is a political correspondent for NPR covering race, justice and politics. She has covered politics since 2010 for publications including Politico, CNN and The Associated Press. She got her start in public radio at KBIA in Columbia, Mo., and also previously covered Congress for NPR.
Megan Lim
Ashley Brown is a senior editor for All Things Considered.