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CNN  — 

The Justice Department urged the Supreme Court on Tuesday to reject former President Donald Trump’s request that it intervene in the dispute over classified documents seized from Trump’s Mar-a-Lago estate in August.

Calling the records “extraordinarily sensitive,” the Justice Department said the Supreme Court should let stand a federal appeals court order that blocked the special master’s access over those records while legal challenges play out.

“As this Court has emphasized, courts should be cautious before ‘insisting upon an examination’ of records whose disclosure would jeopardize national security ‘even by the judge alone, in chambers,’” DOJ wrote, citing a past case.

Trump’s lawyers want the special master assigned in the case to review the more than 100 documents marked classified – which, if allowed, could open the door to Trump’s team reviewing the records and arguing they should be off-limits to prosecutors in a criminal case.

The full court could act on the matter within days. It would take five justices to agree to grant Trump’s request.

The Justice Department’s primary argument is that the appeals court was correct, and they said the Trump legal team was wrong to argue the Supreme Court should consider the issue.

“Indeed, the most that applicant could possibly establish about appellate jurisdiction in this case is that it presents a ‘difficult’ question,” US Solicitor General Elizabeth Prelogar wrote in Tuesday’s filing.

At issue are two orders US District Judge Aileen Cannon issued last month. She has authorized a special master to review seized materials – including those with classified markings. Earlier, Cannon temporarily enjoined the Justice Department from using the subset of documents as a part of its ongoing criminal probe.

Aileen Cannon and Donald Trump
Here's why Trump-appointed judge Aileen Cannon's decisions are under scrutiny
03:54 - Source: CNN

A panel of judges on the 11th US Circuit Court of Appeals, however, acting upon a request from the Justice Department, agreed to freeze portions of those orders while the legal dispute plays out.

Trump has argued that he may have had a right, as a former president, to possess certain government documents, including documents potentially containing the country’s most sensitive secrets.

“The Eleventh Circuit lacked jurisdiction to review, much less stay, an interlocutory order of the District Court providing for the Special Master to review materials seized from President Trump’s home,” Trump told the Supreme Court last week.

Raymond Dearie, the senior US judge appointed as special master, will be “substantially impaired” by the appeals court order and that it will slow “ongoing time-sensitive work,” Trump’s team added.

“Any limit on the comprehensive and transparent review of materials seized in the extraordinary raid of a President’s home erodes public confidence in our system,” the filing said.

US Solicitor General Elizabeth Prelogar said Cannon, who was appointed by Trump, “fundamentally erred” in appointing a special master in the first place and noted the Justice Department is appealing that decision in the lower courts.

The DOJ, in its filing, also noted that the 11th Circuit US Court of Appeals found that Cannon “abused her discretion” and inflicted “a serious and unwarranted intrusion on the Executive Branch’s authority to control the use and distribution of extraordinarily sensitive government records.”

Cannon’s decision to block DOJ’s access to documents marked classified and seized from Mar-a-Lago has slowed down the DOJ’s ability to work on the case and given Trump a runway to sharpen his defenses.

DOJ said that Trump’s application to the Supreme Court “concerns an unprecedented order by the district court restricting the Executive Branch’s use of its own highly classified records in an ongoing criminal investigation and directing the dissemination of those records outside the Executive Branch for a special-master review.”

Trump’s appeal puts the court once again front and center in a dispute featuring the former president, who nominated three of the current justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. But Trump lost a previous challenge in a case concerning documents related to the House January 6 select committee, with only Justice Clarence Thomas stating publicly that he would have ruled in Trump’s favor.

“Even in the unlikely event that the Court sides with Trump this time, all that means is that Judge Dearie gets to look at more of the files that were seized,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. “It would have no impact on whatever the Department of Justice is doing with those materials.”

The criteria the court will consider includes whether there is a “fair prospect” that a majority of the court would conclude that the decision below is erroneous, and whether “irreparable harm” would result from the denial of the stay.

This story has been updated with additional details.