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A court document filed by the Department of Justice on Tuesday requested a partial stay of judge's order to employe a special master to oversee documents seized in the August 8 raid of Mar-a-Lago. In the motion in regarding that September 5 ruling, attorneys for the government called into question whether Trump had in fact declassified the documents at the center of the raid.
The document, filed in the Southern District of Florida, argues that the government is entitled to limited relief, writing that Trump may have never formally declassified the over 100 documents that were seized by the FBI on August 8 bearing those markings, that the government’s investigation into Trump would be heavily impeded by the appointment of a special master, and that Trump’s team had failed to list any "cognizable harm" that would be suffered if a stay of motion is granted.
"First, Plaintiff has failed to rebut the government’s showing that the Court lacks equitable jurisdiction as to seized records bearing classification markings because Plaintiff categorically has no “property” interest in those records and no 'need for' their return," the court document states.
The document later continues, "As to the records marked as classified, Plaintiff asserts that the government has not 'proven' their classification status."
"But even if Plaintiff had declassified any of these records while he was President—a proposition that Plaintiff does not specifically assert in any of his filings in these proceedings, in a sworn declaration, or through any evidence—any record bearing classification markings was necessarily created by the government and, therefore, is not Plaintiff’s personal property," it added.
The document states that although Trump has observed that "the [Presidential Records Act (PRA)] generally entitles him to access Presidential records created during his tenure," the PRA "does not establish that a former President has any property right in Presidential records."
"To the contrary, it makes clear that '[t]he United States' has 'complete ownership, possession, and control' of them."
"Second, Plaintiff has no viable claim of privilege as to the records bearing classification markings," the document continues.
The filing states that Trump’s team "does not contest" that they lack a "personal attorney-client privilege claim" in regards to the document, because such classified documents "would not contain communications between Plaintiff and his personal attorneys."
His team, according to the filing, also reportedly offered "no response" to the department’s arguments that "he cannot plausibly assert executive privilege to prevent the Executive Branch itself from reviewing records that Executive Branch officials previously marked as classified."
Citing United States v. Nixon, 418 U.S. 683, the filing states that any claim of privilege over these documents is overcome by the "the government’s compelling need for these records."
The filing later continues: "Plaintiff’s attempts to change the subject by holding out the possibility that he could have declassified some of the seized records and/or that he could have designated them as 'personal' records, D.E. 84 at 11-15, fare no better."
"As already noted, Plaintiff has now filed multiple lengthy submissions with the Court that stop short of asserting that he in fact took any of these actions with respect to any of the seized records, including those at issue in the stay motion."
The government said that in light of classification markings, "such possibilities should not be given weight absent Plaintiff’s putting forward competent evidence."
"In any event, even if Plaintiff had declassified any of the approximately 100 seized records bearing classification markings while he was still in office, the government’s “demonstrated, specific need” for those records, United States v. Nixon, 418 U.S. at 713, would easily overcome any asserted claim of privilege," the filing states.
The document states that the Intelligence Community has a compelling need to know what documents had been declassified, why and how they were declassified, and the impact of such actions.
The attorney also argues that even if some documents had been deemed personal records during his presidency, he cannot also assert executive privilege over the documents.
"In any event, whether Plaintiff declared documents with classification markings to be his “personal” records for purposes of the PRA has no bearing on the government’s compelling need to review them, both for national security purposes and as part of its investigation into the potentially unlawful retention of national defense information," the filing states.
If a special master is indeed appointed, the attorney for the government said that they would suffer "irreparable harm."
"Plaintiff’s submissions to the Court indicate that Plaintiff contemplates a prolonged 90-day review period by the special master. Thus, even assuming that a special master begins that review immediately, the review would not be complete until December under Plaintiff’s proposed timeline."
"All the while, the Intelligence Community would (at best) be limited in its ability to address and fully mitigate any national security risks presented by the storage and handling of the classified records at issue here, and DOJ and the FBI would be unable to perform critical parts of their criminal investigatory functions."
This latest document comes as both parties had fought over who to appoint as a special master. The special master would review the documents taken from Trump’s residence in August, and would block the government from viewing these documents during this time.
The Department of Justice offered up Barbara Jones as their selection to be special master, or Thomas Griffin, with Trump’s team suggesting Florida's former Deputy Attorney General Paul Huck or Raymond Dearie.
The document, filed in the Southern District of Florida, argues that the government is entitled to limited relief, writing that Trump may have never formally declassified the over 100 documents that were seized by the FBI on August 8 bearing those markings, that the government’s investigation into Trump would be heavily impeded by the appointment of a special master, and that Trump’s team had failed to list any "cognizable harm" that would be suffered if a stay of motion is granted.
"First, Plaintiff has failed to rebut the government’s showing that the Court lacks equitable jurisdiction as to seized records bearing classification markings because Plaintiff categorically has no “property” interest in those records and no 'need for' their return," the court document states.
The document later continues, "As to the records marked as classified, Plaintiff asserts that the government has not 'proven' their classification status."
"But even if Plaintiff had declassified any of these records while he was President—a proposition that Plaintiff does not specifically assert in any of his filings in these proceedings, in a sworn declaration, or through any evidence—any record bearing classification markings was necessarily created by the government and, therefore, is not Plaintiff’s personal property," it added.
The document states that although Trump has observed that "the [Presidential Records Act (PRA)] generally entitles him to access Presidential records created during his tenure," the PRA "does not establish that a former President has any property right in Presidential records."
"To the contrary, it makes clear that '[t]he United States' has 'complete ownership, possession, and control' of them."
"Second, Plaintiff has no viable claim of privilege as to the records bearing classification markings," the document continues.
The filing states that Trump’s team "does not contest" that they lack a "personal attorney-client privilege claim" in regards to the document, because such classified documents "would not contain communications between Plaintiff and his personal attorneys."
His team, according to the filing, also reportedly offered "no response" to the department’s arguments that "he cannot plausibly assert executive privilege to prevent the Executive Branch itself from reviewing records that Executive Branch officials previously marked as classified."
Citing United States v. Nixon, 418 U.S. 683, the filing states that any claim of privilege over these documents is overcome by the "the government’s compelling need for these records."
The filing later continues: "Plaintiff’s attempts to change the subject by holding out the possibility that he could have declassified some of the seized records and/or that he could have designated them as 'personal' records, D.E. 84 at 11-15, fare no better."
"As already noted, Plaintiff has now filed multiple lengthy submissions with the Court that stop short of asserting that he in fact took any of these actions with respect to any of the seized records, including those at issue in the stay motion."
The government said that in light of classification markings, "such possibilities should not be given weight absent Plaintiff’s putting forward competent evidence."
"In any event, even if Plaintiff had declassified any of the approximately 100 seized records bearing classification markings while he was still in office, the government’s “demonstrated, specific need” for those records, United States v. Nixon, 418 U.S. at 713, would easily overcome any asserted claim of privilege," the filing states.
The document states that the Intelligence Community has a compelling need to know what documents had been declassified, why and how they were declassified, and the impact of such actions.
The attorney also argues that even if some documents had been deemed personal records during his presidency, he cannot also assert executive privilege over the documents.
"In any event, whether Plaintiff declared documents with classification markings to be his “personal” records for purposes of the PRA has no bearing on the government’s compelling need to review them, both for national security purposes and as part of its investigation into the potentially unlawful retention of national defense information," the filing states.
If a special master is indeed appointed, the attorney for the government said that they would suffer "irreparable harm."
"Plaintiff’s submissions to the Court indicate that Plaintiff contemplates a prolonged 90-day review period by the special master. Thus, even assuming that a special master begins that review immediately, the review would not be complete until December under Plaintiff’s proposed timeline."
"All the while, the Intelligence Community would (at best) be limited in its ability to address and fully mitigate any national security risks presented by the storage and handling of the classified records at issue here, and DOJ and the FBI would be unable to perform critical parts of their criminal investigatory functions."
This latest document comes as both parties had fought over who to appoint as a special master. The special master would review the documents taken from Trump’s residence in August, and would block the government from viewing these documents during this time.
The Department of Justice offered up Barbara Jones as their selection to be special master, or Thomas Griffin, with Trump’s team suggesting Florida's former Deputy Attorney General Paul Huck or Raymond Dearie.
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