Trump and DOJ close to agreement on expert to review seized records

While the teacher’s identity may soon be resolved, Trump and prosecutors remain at odds over many other aspects of the review, most notably whether it should cover some 100 documents marked classified that FBI agents recovered during the raid.

In a filing Monday morning, Trump’s attorneys urged Cannon to uphold a ruling that prevented the Justice Department from continuing its criminal investigation into highly sensitive government records hidden in the basement and in his office at his Florida home. , which also serves as a private club.

The filing, a response to prosecutors’ warning that Trump’s unorthodox appointee directive, which prevents FBI investigators from accessing files seized in his Aug. 8 search, was harming national security, He urges her to stay the course.

“In what is essentially a document storage dispute that has spiraled out of control, the administration is seeking to unlawfully criminalize the 45th president’s possession of his own presidential and personal records,” Trump’s lawyers said. wrote in a 21-page presentation.

Trump directly praised Cannon last week, calling his initial decision “courageous” and lashing out at the Justice Department for appealing his order. The department has asked Cannon to temporarily rescind the part of his order that blocked FBI access to about 100 records marked classified, including some with labels indicating the most sensitive records the government possesses.

Trump’s response revolved around the question of whether Trump declassified any of the records before leaving office, as he has publicly claimed, instead noting that the Justice Department has not proven their “classified status.”

“[T]The government has not proven that these records remain classified,” Trump’s attorney, Christopher Kise, and other attorneys for the former president wrote. “That issue will be determined later.”

The filing also notes that Trump designated some of the records as his “personal” property, a broad designation power given to sitting presidents, meant to segregate records that have no value to the government.

But again, Trump’s lawyers are not claiming that he actually took this step, and their filing includes no evidence or affidavits from Trump suggesting he took these steps.

“To the extent that President Trump may have categorized certain seized materials as personal during his presidency, any disagreement as to that categorization must be resolved under the [Presidential Records Act] and may not form the basis of any criminal prosecution,” Kise wrote.

Trump’s lawyers are drawing heavily on a 2012 ruling by US District Court Judge Amy Berman Jackson, once derided by Trump for her handling of the Roger Stone criminal trial. Jackson, an appointee of President Barack Obama, dismissed a lawsuit seeking to force the National Archives to claim ownership of audio recordings held by former President Bill Clinton of interviews he conducted with journalist Taylor Branch.

jackson ruled that presidents have broad discretion to designate records such as audio tapes as “personal”, with little, if any, recourse to government or the public over those decisions, even though the 1978 law requires that such personal records be those that have no ongoing decision-making value for the executive branch.

While Jackson’s ruling is not binding precedent, it did conclude that Clinton had effectively designated the tapes as personal by failing to release them to the archives when his second term ended in 2001.

The Justice Department argues that Trump’s situation differs from Clinton’s in part because some of the documents in question were flagged as highly classified material, inherently indicating that they are of immense value to the current administration.

Among the most aggressive arguments in Trump’s report was the suggestion that he might consider the records personal under the Presidential Records Act, even if they were classified.

“Classified or declassified, the documents remain 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 sole discretion to classify a record as personal or presidential,” they write, quoting a portion of Jackson’s decision which actually says that the appointment must be made while a president is in office.

Trump has argued that because the records were created during his tenure, he has an “absolute right” to access them, including keeping them at his private residence. The government has maintained that, regardless of 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 the records marked as classified in Trump’s possession in May and sought to retrieve them during a June 3 meeting at Mar-a-Lago, where they visited a basement storage area. of Florida residence. Investigators were alarmed by the presence of records containing highly classified marks that were stored in the unsecured facility, rather than adhering to the strict security measures that normally accompany the storage of national security documents.

The Justice Department is investigating Trump’s handling of those records for possible violations of the Espionage Act for willful withholding of classified documents, theft or concealment of government records, and obstruction of justice, citing evidence that Trump or his Allies worked to hide some of the sensitive data. records requested by the government.

In their filing, Trump’s lawyers argue that the Justice Department should have considered filing a civil lawsuit to recover the records before launching a criminal investigation. They also argue that Cannon’s order, which allowed a national security review by the intelligence community to continue, was not an obstacle to national security.

“Given the circumstances involving a former president’s possession of his own presidential records in a location that had long been used to conduct the business of the United States, the pursuit of all other available civil mechanisms would have been respectfully, a better exercise of prudential judgment,” Kise wrote.

In particular, Trump’s lawyers appear to be contemplating a potential jury trial for Trump, referencing the prospect in two footnotes. The Justice Department “would presumably be prepared to share all of those records publicly in any future jury trials,” they write, adding that “neither the leaks nor the prospect of a public jury trial appear to raise concerns about irreparable harm.”

Trump’s team also notified Cannon Monday afternoon that they oppose both Justice Department 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 turn down the two people the department proposed: Barbara Jones, a former federal judge who has handled sensitive “special master” duties in three recent politically explosive cases , and Thomas Griffith, a former federal appeals court judge who retired in 2020. Trump’s attorneys asked not to be required to elaborate on those reasons in a public filing and said Trump’s team was prepared to share the details with the judge in private.

The Justice Department said in its filings Monday that Jones, Griffith or Dearie would be suitable for the job. However, prosecutors did point to a possible concern, noting that Dearie is not fully retired from government service, but she is officially in “active senior” status.

It’s unclear if that would complicate her selection, but prosecutors said Dearie indicated she “could get the job done on an expedited basis.”

In addition to Dearie, Trump proposed as a possible special teacher Paul Huck Jr., a Florida-based attorney who advised Charlie Crist, the former state governor, at the same time as Kise. The Justice Department said it considered Huck unfit for the job because he lacks service as a judge.

Leave a Comment