The Nature Of Appeals

2. In short, Trump is asking #SCOTUS to vacate *part* of the Eleventh Circuit's stay in the Mar-a-Lago case. In essence, he's arguing that the 100+ classified documents at issue *should* be part of the pile before Judge Dearie, and that under the 11th Cir.'s stay, they're not.

— Steve Vladeck (@steve_vladeck) October 4, 2022

4. To get there, the brief tries to thread a very fine needle, arguing that, although the *injunction* was properly before the Eleventh Circuit, the rest of the order was not, so Dearie shouldn't be affected. This gets into the messy doctrine of "pendent appellate jurisdiction."

— Steve Vladeck (@steve_vladeck) October 4, 2022

This is where they try to escape Cannon’s new order (responding to the 11th Circuit order). The point also is to get everything back in front of Dearie so Cannon can continue to give Trump whatever he asks for. Calm down; asking isn’t the same as getting. (Tl:dr below)

6. Personally, I think DOJ has a very good argument that the issues *are* pendent, and so the Eleventh Circuit had the ability to do everything that it did in staying Judge Cannon's order. If that's correct, then Trump's argument for emergency relief fails on the "merits."

— Steve Vladeck (@steve_vladeck) October 4, 2022

As I said, asking is not getting. It very much depends on why you are asking, too.

8. And this 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 criteria, Trump can't make out the *procedural* case for the relief he's seeking.

— Steve Vladeck (@steve_vladeck) October 4, 2022

10. So my best guess is that the Court will deny the application, although some Justices may write separately.

Two last points on what to take away from this filing:

First, what Trump is asking for is *very* modest. Even *if* he wins, it won't stop DOJ from doing *anything.*

— Steve Vladeck (@steve_vladeck) October 4, 2022

"Modest” and doesn’t really do anything? So why are they trying?

12. That point reinforces the big takeaway: This is a very specific and narrow request by Trump the merits of which turn on a technical jurisdictional question, but which runs into fatal procedural obstacles long before that. It's not laughable, but only because it's small.

/end

— Steve Vladeck (@steve_vladeck) October 4, 2022

I’m (not surprisingly) with Prof. Vladeck on this, because I find his argument persuasive. The Court has every reason to turn this down . One thing you have to do as Petitioner is give them reason to take your case, not just hope they will. This appeal is pretty much client service. The Court has enough to do without serving that. Which makes the odds of it getting anywhere pretty slim indeed.

Or if you want a shorter version:

Trump is only asking the Supreme Court to let the Special Master review the classified material, *not* to stop DOJ from using it.

Presumably he’s doing that because his team wants to see the classified documents now.

The argument they make is very narrow and legal/technical.

— Renato Mariotti (@renato_mariotti) October 4, 2022

I think the Court of Appeals (which included two Trump appointees) was right, and I would be surprised if the Supreme Court went out of its way to overrule them on this issue.

— Renato Mariotti (@renato_mariotti) October 4, 2022