While the master’s identity may soon be resolved, Trump and prosecutors remain at odds over many other aspects of the review, including whether he should cover approximately 100 documents marked as classified that FBI agents recovered during the raid.
In a Monday morning filing, Trump’s lawyers urged Cannon to keep in place a ruling that blocked the Justice Department from continuing its criminal investigation into highly sensitive government records hidden in the basement and in his office at his home. in Florida, which also serves as a private club.
The submission, a response to prosecutors’ warning that the Trump appointee’s unorthodox directive — preventing FBI investigators from accessing files seized in their Aug. 8 search — undermined national security, urges him to stay the course.
“In what is at its core a document storage dispute that has spiraled out of control, the government is improperly seeking to criminalize the 45th president’s possession of his own presidential and personal records,” Trump’s attorneys said. written in a 21-page folder.
Trump directly praised Cannon last week, calling his initial decision “courageous” and lashing out at the Justice Department for appealing his order. The department asked Cannon to temporarily rescind the part of its order that blocked the FBI’s access to about 100 files marked as classified — including some with labels indicating the most sensitive records the government has.
Trump’s response danced around whether Trump had declassified any of the documents before he left office – as he publicly claimed – and instead notes that the Justice Department did not proved their “classification status”.
“[T]The government has not proven that these records remain classified,” Trump attorney Christopher Kise and other attorneys for the former president wrote. “That question is to be determined later.”
The filing also notes that Trump designated some of the documents as his “personal” property, a broad designation power granted to sitting presidents, intended to segregate documents that have no value to the government.
But again, Trump’s attorneys are not claiming that he actually took this action, and their filing does not include any evidence or affidavits from Trump suggesting he took these actions.
“To the extent that President Trump may have categorized some of the documents seized as personal during his presidency, any disagreement as to this categorization should be resolved under [Presidential Records Act] and cannot possibly form the basis of criminal prosecution,” Kise wrote.
Trump’s lawyers rely heavily on a 2012 ruling by US District Court Judge Amy Berman Jackson – once ridiculed by Trump for her handling of Roger Stone’s criminal trial. Jackson, a President Barack Obama appointee, has dismissed a lawsuit seeking to force the National Archives to claim ownership of audio recordings kept by former President Bill Clinton of interviews he did with journalist Taylor Branch.
Jackson ruled that presidents had broad discretion to designate recordings such as audio tapes as “personal,” with little or no recourse for the government or the public over those decisions, even though the law of 1978 requires that these personal records be those without continuing decisional value to the executive branch.
Although Jackson’s decision is not a binding precedent, it did find that Clinton had effectively designated the tapes as personal by not turning them over to the archives at the end of his second term in 2001.
The Justice Department argues that Trump’s situation differs from Clinton’s in part because some of the documents in question have been marked as highly classified, inherently indicating that they are of immense value to the government. current.
Among the more aggressive arguments in Trump’s brief is a suggestion that he could consider personal records under the Presidential Records Act, even if they were classified.
“Classified or declassified, the documents remain either presidential records or personal records under the PRA,” Trump’s legal team wrote.
In one passage, Trump’s lawyers even argue that he had the right to designate records as personal after he left office.
“The former president has the discretion to classify a file as personal or presidential,” they write, quoting part of Jackson’s decision which actually says that the designation must be made while a president is in office.
Trump argued that because the records were created during his tenure, he has an “absolute right” to access them, including keeping them in his private residence. The government maintained that, whatever their status, the documents belong to the National Archives and are under the control of the current executive branch.
Prosecutors issued a grand jury subpoena in May for all records marked as being in Trump’s possession in May and attempted to retrieve them at a June 3 meeting in Mar-a-Lago, where they visited a storage area in the basement of the residence in Florida. Investigators were alarmed by the presence of documents containing highly classified markings that were stored in the unsecured facility, rather than in accordance with the strict security measures that usually accompany the storage of national security documents.
The Justice Department is investigating Trump’s handling of those records for potential violations of the Espionage Act for willfully withholding classified documents, stealing or concealing government documents, and obstructing justice, citing evidence that Trump or his allies worked to cover up some of the sensitive material. cases subpoenaed by the government.
In their filing, Trump’s lawyers argue that the Justice Department should have considered mounting a civil lawsuit to recover the records before opening a criminal investigation. They also argue that Cannon’s order, which allowed for a national security review to continue by the intelligence community, was not a national security hurdle.
“Given that the circumstances involve a former president’s possession of his own presidential records in a location that had long been used to conduct the affairs of the United States, pursuit of all other available civil mechanisms would, respectfully, have been a better exercise. of prudential judgment,” Kise wrote.
Notably, Trump’s lawyers appear to be considering a possible jury trial for Trump, referring to the prospect in two footnotes. The Justice Department “would presumably be prepared to share all of these records publicly at any future jury trials,” they wrote, adding that “neither the leaks nor the prospect of a public jury trial appear to raise concerns. concerning irreparable harm”.
Trump’s team also informed Cannon Monday afternoon that it opposes the Justice Department’s two options to oversee an independent review of material seized from his estate, a key part of the judge’s order.
Trump’s lawyers said they had “specific reasons” for urging Cannon to reject the two people proposed by the department: Barbara Jones, a former federal judge who served as a sensitive “special master” in three politically charged cases. recent explosives, and Thomas Griffith, a former federal appeals court judge who retired in 2020. Trump’s lawyers asked that they not be required to expand on those reasons in a public record and said that Trump’s team was prepared to share details with the judge privately.
The Justice Department said in its Monday filings that Jones, Griffith or Dearie would be well suited for the job. However, prosecutors flagged a potential concern, noting that Dearie is not fully retired from public service, but is officially in “active senior” status.
It’s unclear whether that would complicate his selection, but prosecutors said Dearie indicated he “could get the job done quickly.”
In addition to Dearie, Trump has proposed as potential special counsel Paul Huck Jr., a Florida-based attorney who advised Charlie Crist, the state’s former governor, along with Kise. The Department of Justice indicated that it considered Huck ill-suited for the role because he had no service as a judge.