Clarence Thomas Could Give Trump Major Win Without a Supreme Court Vote

Legal experts say conservative Supreme Court Justice Clarence Thomas has unilateral authority to restore an outside reviewer's authority to review and potentially withhold 100 documents found at Donald Trump's Mar-a-Lago estate from evidence in an ongoing inquiry into whether the former president illegally removed classified materials from the White House.

In a legal brief filed with the United States Supreme Court on Tuesday, Trump's attorneys requested the Court—specifically, Thomas—reconsider a prior ruling granting an appeal by the Department of Justice to exempt more than 100 documents marked as classified from review by the Trump-designated special master, Raymond Dearie.

If the Court rules in Trump's favor, Dearie would then be permitted to decide whether the documents are subject to executive privilege, thereby causing the Department of Justice to risk losing key pieces of evidence in its case against Trump as it seeks to prove he willingly and knowingly removed classified documents from his time in the White House.

"The Trump filing is a predictable attempt to derail the ongoing DOJ investigation," Michael McAuliffe, a former federal prosecutor and an adjunct professor at the College of William & Mary Law School, told Newsweek in an email. "While extraordinary, the emergency request is procedurally available for a litigant to use."

Clarence Thomas
Associate Supreme Court Justice Clarence Thomas speaks at the Heritage Foundation on October 21, 2021, in Washington, D.C. In a legal brief filed with the Supreme Court on Tuesday, Trump's attorneys requested the Court—specifically, Thomas—reconsider a prior ruling granting an appeal by the Department of Justice to exempt more than 100 documents marked as classified from review by the Trump-designated special master. Drew Angerer/Getty Images

McAuliffe said the 11th Circuit's panel decision to keep the documents from review both clearly and concisely justified the DOJ's desire to keep the documents marked as classified, establishing a precedent that would likely withstand review by the Supreme Court.

However, Thomas—who has a longstanding legacy of activist opinions on the bench—could potentially make that decision for himself, possibly handing Trump a significant win and further challenging the already tenuous credibility of the nation's highest court.

"It's Thomas' decision to refer the application to the full Supreme Court," former federal prosecutor Neama Rahmani told Newsweek in an email. "This is a significant advantage to Trump because Thomas is considered by many to be the most conservative justice on the Court and the justice who will view Trump's request most favorably."

Under federal law, each Circuit Court of Appeals is assigned one Supreme Court justice who handles certain types of emergency requests similar to the one filed by Trump's attorneys. Currently, the case against Trump is being contemplated within the 11th Circuit Court of Appeals, which covers the state of Florida. And Justice Thomas, a key ally of the president, just happens to be the Supreme Court justice responsible for the 11th Circuit.

"If Justice Thomas acts unilaterally and effectively supersedes the 11th Circuit's order, it would constitute a shocking intervention by one individual in a legal process of immense consequence," McAuliffe added. "Such a raw exercise of individual judicial power when the full court is available to consider the issue likely would be met with widespread condemnation and disbelief."

But the decision comes amid a volley of legal challenges from the Justice Department over whether Dearie himself should even be a party in the case.

On Wednesday, a U.S. appeals court ruled it would be granting the DOJ's request to expedite an ongoing appeal of Trump-appointed Judge Aileen Cannon's order clearing the way for Dearie to review the classified records in the first place.

A decision on Trump's appeal is expected by October 11.