Former President Trump is fighting a request from the Department of Justice (DOJ) to allow its review of classified materials taken from Mar-a-Lago to continue, with Trump’s legal team arguing the investigation “at its core is a document storage dispute that has spiraled out of control.”
The filing continues to assert the former president has broad power to control his records even after he leaves office, even the classified records that the Justice Department argued Trump can have no possible claim to, and thus do not require review by a third-party special master.
In the filing, Trump’s legal team pushed back against the idea that there was any possible damage from the mishandling of records.
“There is no indication any purported ‘classified records’ were disclosed to anyone. 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,” they wrote.
The response from Trump’s team came after the Justice Department last Thursday indicated it planned to appeal a federal district court judge’s ruling green-lighting a special master, also asking her to approve a partial stay that would exclude some 300 classified records from their review.
“The classification markings establish on the face of the documents that they are government records, not Plaintiff’s personal records,” the DOJ wrote.
“And for several reasons, no potential assertion of executive privilege could justify restricting the executive branch’s review and use of the classified records at issue here.”
But Trump’s team claimed Monday that classification status matters little within the Presidential Records Act (PRA) and that Trump’s document issues should be sorted with the National Archives, or NARA.
“Of course, classified or declassified, the documents remain either presidential records or personal records under the PRA,” they wrote.
“At best, the government might ultimately be able to establish 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 … or with NARA, but not with the Department of Justice.”
The brief also seeks to undercut the heart of the Justice Department’s argument that its criminal investigation is “inextricably intertwined” with a separate intelligence community review of the documents led by the Office of the Director of National Intelligence (ODNI) that the judge allowed to continue.
The FBI is part of the intelligence community and would be the agency responsible for investigating any mishandling of intelligence that the review uncovers, DOJ said.
Though in a Friday night filing the Trump legal team said a special master should be afforded three months to complete a review of the documents, in its latest brief to the court it said the investigation could withstand a “brief pause.”
It also alleges the ODNI damage assessment into potential fallout from the mishandling of the records is a way to further DOJ’s criminal investigation.
“The government contends that the FBI and ODNI, and their personnel, are so inseparable they are incapable of having agents outside the criminal case participate in the ODNI-led investigation. This convenient, and belated, claim by the Government relative to enjoining the criminal team’s access to these documents only arises because the FBI concedes the intelligence community review is actually just another facet of its criminal investigation,” Trump’s legal team wrote.
The filing is the closest Trump’s legal team has gotten to repeating claims by the former president that he declassified the information found in his home – but they stop short of actually doing so.
The brief spends a few pages noting that presidents have the power to declassify documents but never say that Trump actually did so.
“The government’s stance assumes that if a document has a classification marking, it remains classified irrespective of any actions taken during President Trump’s term in office,” Trump’s legal team wrote.
“There is no legitimate contention that the chief executive’s declassification of documents requires approval of bureaucratic components of the executive branch. Yet, the government apparently contends that President Trump, who had full authority to declassify documents, ‘willfully’ retained classified information in violation of the law,” they added.
In an earlier round of filings, the DOJ noted that in the months of discussions Trump’s legal team never raised the prospect that the former president had declassified the intelligence material at his home, nor had they offered any explanation for why he had roughly 10,000 government records stored there.
A response brief from Trump’s team the next day was silent on those matters.
— Updated at 11:18 a.m.