Putting those annoying facts to the side, Trump’s request for relief is extraordinarily narrow and, if granted, would not impede the DOJ’s criminal investigation. Trump seeks an order to include the classified documents in the special master review. Trump did not request that the DOJ be enjoined from using those documents in its criminal investigation. The brief is here: Application for Stay. An excellent analysis (recommended by Professor Tribe) is included in this Twitter thread by Steve Vladeck, who makes the following points:
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Critically, [Trump] is not arguing that the 11th Circuit was wrong to stay that part of Cannon’s order that enjoined DOJ from using those documents. So, the relief he’s seeking wouldn’t stop DOJ from continuing to do whatever it’s doing.
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To vacate a lower-court stay, Trump also has to show that the stay is causing him irreparable harm (harm that justifies [the Court’s] emergency intervention).
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[T]his is what’s most conspicuously absent from his application: Any argument about how the stay, by itself, is harming Trump in a way that can’t be ameliorated later. Without meeting that criterion, Trump can’t make out the “procedural” case for the relief he’s seeking.
In short, Trump has failed to make any showing that he is entitled to emergency relief, and his application should have been denied before the ink was dry on his brief. It’s that simple. If Thomas or the other justices give Trump an iota of relief, they will cover themselves in (even greater) dishonor and disgrace.
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lennyesq 