As we previously reported, Judge Aileen Cannon ruled for President Donald Trump, agreeing to have a special master go through the items seized from Trump’s Mar-a-Lago home last month.
The DOJ filed a notice of appeal and also asked to have a partial stay as to the “classified records” that they seized, which they claimed amounted to about 100 documents. They didn’t want the special master assessing those items.
The Trump team is objecting to the DOJ’s motion to not turn over the “classified records” to the special master.
If you just looked at how the media was casting it, you would think it was Trump blocking the review by the special master rather than the DOJ objecting to it.
#BREAKING: Trump fighting DOJ request to review classified docs https://t.co/FozfQKt7ft
— The Hill (@thehill) September 12, 2022
The DOJ has already looked through the material. But they don’t want the special master to look through it. So hardly a transparent move and The Hill’s take is misleading at best.
The Trump legal team blasted the whole investigation as “out of control” and noted that the government hasn’t even shown that the documents “remain classified.” They’re disputing that they are classified.
In a filing Monday morning, Trump’s legal team said the Justice Department is seeking to “limit the scope of any review of its investigative conduct and presuppose the outcome, at least in regard to what it deems are ‘classified records.’” [….]
“This investigation of the 45th President of the United States is both unprecedented and misguided,” Trump’s lawyers said in the filing. “In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records.”
Trump’s legal team added that the court’s order “is a sensible preliminary step towards restoring order from chaos.”
“The Government should therefore not be permitted to skip the process and proceed straight to a preordained conclusion,” they wrote.
The Trump legal team noted that the documents had been secure before being seized.
“Indeed, it appears such ‘classified records,’ along with the other seized materials, were principally located in storage boxes in a locked room at Mar-a-Lago, a secure, controlled access compound utilized regularly to conduct the official business of the United States during the Trump Presidency, which to this day is monitored by the United States Secret Service,” Trump’s lawyers said.
They went on to argue that the Presidential Records Act (PRA) gives any president “extraordinary discretion to categorize all his or her records as either Presidential or personal records, and established case law provides for very limited judicial oversight over such categorization.”
“The PRA further contains no provision authorizing or allowing for any criminal enforcement,” Trump’s lawyers wrote, adding that the law, instead, “disputes regarding the disposition of any Presidential record are to be resolved between such President and the National Archives and Records Administration (“NARA”).”
Trump’s legal team argued that the government “at best” may be able to establish that certain presidential records “should be returned to NARA.”
“What is clear regarding all of the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with NARA, but not with the Department of Justice,” his lawyers wrote.
“President Trump clearly has an individual interest in and need for the seized property,” they continued. “The record reflects the material seized from President Trump’s home includes not just ‘personal effects without evidentiary value’ but also approximately five hundred pages of material that is likely subject to attorney-client privilege, as well as medical documents, and tax and accounting information.” [….]
“Moreover, under the PRA, President Trump has specified rights to restrict access to his Presidential records…and an absolute right to access (or have his designee access) those Presidential records,” his lawyers continued. “These rights accord President Trump a sufficient interest in all of the seized materials.”
They added: “Indeed, as developed below, President Trump’s categorization of records during his term was within his sole discretion.”
Case law that tends to support the Trump position includes the decision that we reported on involving Bill Clinton records. In that case, the judge ruled that the former president had a broad right of control over presidential records.
Both sides are supposed to let the judge know what they think about the other side’s candidates for the special master position on Monday. If they can’t agree, the judge will pick someone. The special master will review the documents and make decisions as to what is personal, privileged, or should be returned to Trump.