Donald Trump on Tuesday asked the US supreme court to partially reverse an appellate court decision that prevented the special master, reviewing for privilege protections materials seized by the FBI from his Mar-a-Lago resort in August, also examining 100 documents with classification markings.

The motion to vacate the ruling by the US appeals court for the 11th circuit represents the former president’s final chance to temporarily bar federal prosecutors from using the materials in their inquiry into whether he illegally retained national defense information.

In the emergency request, lawyers for Trump argued that the appellate court lacked jurisdiction to intervene in the lower district court decision that appointed a special master to review all seized documents – including those marked classified – for privilege protections.

The technical motion argued among other things that because the appointment of a special master was a procedural order and not an injunction, the decision by the trial judge in Florida was supposedly not subject to “interlocutory review” by the appellate court at that time.

“That appointment order is simply not appealable on an interlocutory basis,” the filing said. “Nevertheless, the 11th circuit granted a stay of the special master order, effectively compromising the integrity of the well-established policy against piecemeal appellate review.”

In the petition submitted to the supreme court justice Clarence Thomas, who receives 11th circuit appeals, Trump asked that the special master be allowed to review 100 documents marked classified in addition to 11,000 other documents about to be subject to the independent filter process.

The former president does not appear to be seeking to stop the DoJ using the 100 documents in its criminal investigation, since Trump’s argument hinges on the Presidential Records Act, which does not account for whether documents are classified or declassified.

The former president will face significant challenges even if the supreme court hears the case, and even though the bench is dominated by six conservative justices – three of whom he appointed – who have previously shown deference to executive-branch powers.

The argument appears flawed, legal experts said, since it would suggest that higher courts would have no ability to review an order from any federal judge to stop criminal and national security investigations.

Lawyers for Trump also contended that the seized materials could be marked classified for national security purposes and simultaneously be personal documents – a position the DoJ has previously said is impossible, with which the 11th circuit indicated it agreed.

The Trump motion was silent on whether Trump actually declassified any of the documents, as he has claimed publicly. It instead suggested the supreme court consider the case on the basis that he had the power to do so, and might have done so, without providing evidence.