The search, which stemmed from an investigation into whether Trump and his associates improperly took and retained secret government documents, resulted in the discovery of numerous sensitive documents. Trump’s attorneys then asked a special master to review all of the roughly 11,000 documents seized and rule out any that might be covered by attorney-client or executive privilege. U.S. District Judge Aileen M. Cannon granted the request and barred criminal investigators from using the material until the review was complete. The Justice Department challenged parts of Cannon’s ruling and asked the United States Court of Appeals for the 11th Circuit in Atlanta to overturn it.
The amicus brief urges the Court of Appeal to dismiss the appeal. “Given Biden’s track record, combined with his rhetoric demonizing anyone he disagrees with, courts need to be very careful about how [the Justice Department] could abuse its power to punish President Donald Trump,” Paxton, whose office led the effort, said in a statement Tuesday.
Special prod master to Trump lawyers: ‘You can’t have your cake and eat it’
The Utah attorney general’s office confirmed that the state had joined the amicus brief but declined to comment further. Representatives of the other attorneys general did not respond to requests for comment.
Justice Department officials could not be immediately reached on Tuesday evening.
Amicus briefs are documents filed by parties not directly involved in a legal contest to inform judges of additional and relevant information. But the one filed by the attorneys general looks more like a political document than a legal brief, legal experts said.
The attorneys general of Texas, Florida, Indiana, Kentucky, Mississippi, Missouri, Montana, Louisiana, South Carolina, Utah and West Virginia do not give details of the main legal issues Trump is contesting — executive privilege and whether documents found in his estate in Florida were in fact classified — according to John Yoo, an executive privilege legal expert who reviewed the case at the request of the Washington Post .
The term “executive privilege” is mentioned only once in the filing, and the text does not provide new information that could help determine whether government documents found on Trump’s property are classified. The privilege is generally invoked to protect communications from the executive branch of Congress or the courts, not from an agency within the branch itself, such as the Department of Justice.
Instead, GOP officials list a wide range of grievances against the Biden administration, including its handling of immigration enforcement and its response to the coronavirus pandemic, which don’t seem not directly related to the case. They argue that the administration’s “questionable conduct” in policymaking and litigation means courts should treat the Justice Department’s appeal with caution.
The officials who signed the brief are “very good lawyers,” said Yoo, who worked in the George W. Bush administration’s Justice Department. But the brief is a political document that “simply doesn’t address any of the issues at stake”, he said.
Analysis: A Mar-a-Lago brief from GOP attorneys general is less than it looks
Paxton has previously used his office to appear in court on behalf of Trump and other right-wing causes. In 2020, Texas attempted to sue Georgia, Michigan, Wisconsin and Pennsylvania in the 2020 presidential election in a long-running bid to undo Joe Biden’s victory. The Supreme Court dismissed this case.
The brief is “Of course, a political stunt,” said Jon D. Michaels, a law professor at the University of California, Los Angeles, who studies presidential powers. “Officials play against fierce MAGA bases in their states,” he said.
Paxton’s office could not immediately be reached for comment Tuesday evening.
Perry Stein and Devlin Barrett contributed to this report.