Ken Paxton of Texas and 10 other GOP state attorneys general came to the defense of former President Donald Trump on Tuesday in his legal fight over documents the FBI seized last month, filing an amicus brief in court of a federal appeal that argued the Biden administration could not be trusted.
In a 21-page document that repeated many of the right’s talking points but that experts said advanced little new legal ground, officials accused the Biden administration of “looting” Mar-a-Lago, the home of the ‘former president of Florida, during an FBI raid authorized by the court of August 8 and politicization of the Department of Justice.
The search, which grew out of an investigation into whether Trump and his associates improperly took and kept secret government papers, resulted in the discovery of numerous sensitive documents. Trump’s lawyers then asked for a special master to examine about 100 documents and exclude those that may 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 is complete. The Justice Department challenged parts of Cannon’s decision and asked the U.S. Court of Appeals for the 11th Circuit to overturn it.
The amicus brief urges the appeals court to deny the appeal. “Given Biden’s track record, combined with his rhetoric demonizing anyone with whom he disagrees, the courts must be very alert to the ways in which [the Justice Department] he can abuse his power to punish President Donald Trump,” Paxton, whose office led the effort, said in a statement Tuesday.
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The Utah Attorney General’s Office confirmed 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.
Justice Department officials could not immediately be reached Tuesday afternoon.
Amicus briefs are documents filed by parties not directly involved in a legal contest to inform judges of additional and relevant information. But what the attorneys general filed reads more like a policy 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 did not elaborate on the core legal issues Trump is challenging: executive privilege and whether the documents found at his estate in Florida. they were actually classified, according to John Yoo, a legal expert on executive privilege who reviewed the brief 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 in Trump’s possession are classified. The privilege is usually invoked to protect communications from the executive branch of Congress or the courts, not from an agency within the same branch, such as the Justice Department.
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 do not appear to be directly related with 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 at the Justice Department in the George W. Bush administration. But the brief is a political document that “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 seems
Paxton has previously used his office to intervene in court on behalf of Trump and other right-wing causes. In 2020, Texas attempted to sue Georgia, Michigan, Wisconsin, and Pennsylvania for the 2020 presidential election, in a long-running attempt to overturn Joe Biden’s victory. The Supreme Court dismissed this case.
The short is “Of course, a political gimmick,” said Jon D. Michaels, a law professor at the University of California, Los Angeles who studies presidential powers. “Officials are playing with the fierce MAGA bases in their states,” he said.
Paxton’s office could not immediately be reached for comment Tuesday afternoon.
Perry Stein and Devlin Barrett contributed to this report.