The search, which stemmed from an investigation into whether Trump and his associates improperly took and held on to secret government papers, resulted in the discovery of numerous sensitive documents. Trump’s attorneys then asked for a special master to examine some 100 documents and exclude those that may be covered by attorney-client or executive privilege. U.S. District Judge Aileen M. Cannon agreed to the request and barred criminal investigators from using the material until the review is completed. The Justice Department contested parts of Cannon’s decision and asked the Atlanta-based U.S. Court of Appeals for the 11th Circuit to override her.
The amicus brief urges the appellate court to deny the appeal. “Given Biden’s track record, combined with his rhetoric demonizing anyone he disagrees with, the courts must be on high alert to the ways in which [the Justice Department] may abuse its power to punish President Donald Trump,” Paxton, whose office led the effort, said in a statement Tuesday.
The Utah Attorney General’s Office confirmed that the state had joined the amicus brief but declined to comment further. Representatives for the other attorneys general did not respond to requests for comment.
Officials at the Department of Justice could not be immediately reached late Tuesday.
Amicus briefs are documents filed by parties not directly involved in a legal contest to inform judges of additional, relevant information. But the one filed by the attorneys general reads more like a political document than a legal brief, legal experts said.
The attorneys general from Texas, Florida, Indiana, Kentucky, Mississippi, Missouri, Montana, Louisiana, South Carolina, Utah and West Virginia do not elaborate on the core legal issues Trump is contesting — executive privilege and whether the documents found at his Florida estate were actually classified — according to John Yoo, a legal expert on executive privilege who reviewed the brief at The Washington Post’s request.
The term “executive privilege” is mentioned only once in the filing, and the text doesn’t provide new information that could help determine whether the government documents found at Trump’s property are classified. The privilege is usually invoked to shield executive branch communications from Congress or the courts, not from an agency within the branch itself, such as the Justice Department.
Instead, the GOP officials list a wide array of grievances against the Biden administration, including how it handled immigration law enforcement and its response to the coronavirus pandemic, that do not appear 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 “really good lawyers,” said Yoo, who worked in the George W. Bush administration’s Justice Department. But the brief is a political document that “just doesn’t address any of the issues at stake,” he said.
Paxton has previously used his office to intervene in courts on behalf of Trump and other right-wing causes. In 2020, Texas attempted to sue Georgia, Michigan, Wisconsin and Pennsylvania over the 2020 presidential election, in a long-shot attempt to overturn Joe Biden’s victory. The Supreme Court dismissed that case.
The brief is “of course a political stunt,” said Jon D. Michaels, a law professor at the University of California at Los Angeles who studies presidential powers. “The officials are playing to the fierce MAGA bases in their states,” he said.
Paxton’s office could not be immediately reached for comment late Tuesday.
Perry Stein and Devlin Barrett contributed to this report.