Instead, Trump’s lawyers suggest in the filing that the search may have been inappropriate, or even illegal, due to indications that investigators feared documents covered by the Presidential Archives Act were at his doorstep. Palm Beach home.
“It offers the deeply troubling prospect that President Trump’s home was raided on the pretense of suspecting presidential records were on his property — even though the Presidential Records Act is not a criminally enforceable statute,” the report said. Trump file.
Trump lawyers cited favorably a 1991 DC Court of Appeals decision in a dispute over electronic messages exchanged at the end of President Ronald Reagan’s second term that although a sitting president has “virtually complete control” over his records, he must notify the archivist before disposing archives. The ruling notes that “neither the Archivist nor Congress has the power to veto the President’s removal decision.”
But there are complications with Team Trump’s argument. The 1991 ruling did not address the criminal enforcement of the Presidential Records Act nor did it address the actions of former presidents. Moreover, this law was not cited among the criminal laws used to justify the search warrant of Mar-a-Lago. The three-decade-old DC Circuit Court of Appeals decision also offered no opinion on whether keeping White House records without permission could violate any of the laws the FBI and prosecutors cited as the basis for the warrant: a broad prohibition on theft, abuse, or concealment of government records.
In addition to this law, investigators cited two other potential crimes involved: willful withholding of national defense information and obstruction of justice.
Friday’s late night filing was a coda to a frenetic week for the former president’s legal team, which found itself grappling with basic administrative requirements and facing pointed questions from a federal judge. Fort Pierce, Fla.-based Aileen Cannon on exactly what they were asking her to do.
Among the questions Cannon posed to Trump’s lawyers is whether his court even has jurisdiction to consider his claims. Trump’s team argued it did, focusing narrowly on the power of district court judges to appoint special masters. Unanswered is a provision of the Presidential Archives Act requiring that any legal dispute by a former president under that act be be filed in the Federal District Court in Washington DC.
Trump’s renewed offer reiterates his call for the appointment of a special master and also calls for an immediate halt to the Justice Department’s review of documents seized from his home. That review was led by a DOJ “screening team,” which is looking for confidential attorney-client documents, according to court documents.
Trump and his allies have suggested that some of the documents seized are covered by solicitor-client or solicitor-client privilege. But Friday’s new filing doesn’t say how the records are privileged. Some legal experts have questioned the notion of executive privilege applying in this context, since the Presidential Documents Act requires that many such documents be turned over to the National Archives at the end of a presidency.
And Trump, in the filing, also referenced the government’s acknowledgment that he had initially seized three of his passports, returning them after the discovery. His lawyers argued that “the government’s continued detention of similar documents is both unnecessary and likely to cause significant harm.” But they offered no evidence to support that claim, declining to specify what they believed the government had taken inappropriately.
Friday night’s filing was submitted by Lindsey Halligan, a Fort Lauderdale-based attorney serving as a local adviser for Trump, as well as Washington-based James Trusty and Baltimore-based Evan Corcoran.