Trump’s team argued that most of the 13,000 non-classified documents the FBI seized at Mar-a-Lago, Trump’s estate in Palm Beach, Fla., belonged to the former president and that the federal government had no right to review the seized materials. His lawyers have said that Trump had the right to designate presidential documents as personal ones under the Presidential Records Act.
The Justice Department, however, slammed that interpretation of the law as “meritless.” Saying a president could simply designate presidential documents as personal ones would go against the very purpose of the federal act, the Justice Department wrote in its brief.
Under the Presidential Records Act, the immediate staff of the president, the vice president and anyone who advises the president must preserve records and phone calls pertaining to official duties. Trump’s team argued that, as president, he did not need to document that he changed the designation of the seized materials from presidential to personal.
“President Trump need not put forth documentary evidence of his designation decisions, because his conduct unequivocally confirmed that he was treating the materials in question as personal records, rather than presidential records,” his lawyers wrote.
The legal filings were submitted to Raymond J. Dearie, the court-appointed special master who was ordered by a federal judge in Florida to review the materials seized from Trump’s Florida residence and private club and determine whether any should be shielded from criminal investigators because of executive or attorney-client privilege.
The purpose of the filings was for the parties to lay out the big issues and disagreements that they believe Dearie should settle in his review.
Ultimately, if Dearie finds that Trump had privilege or personal claim to certain documents — and U.S. District Judge Aileen M. Cannon agrees with his recommendations — criminal investigators would not be permitted to view those materials as part of their probe.
The Justice Department is investigating Trump’s possession of classified documents at Mar-a-Lago long after he left office and despite a subpoena and other attempts by the federal government to get the materials back. While Dearie is only reviewing the nonclassified government records found in the Aug. 8 search, the Justice Department has said those documents are critical to the investigation and could help them interview witnesses and corroborate evidence.
In its brief to Dearie, the Justice Department wrote that the filing by Trump’s lawyers “doubles down on a wholesale rewriting of the [Presidential Records Act] that has no basis in its text or purpose. Plaintiff appears to offer this argument based on an assumption that a document’s designation as ‘personal’ somehow precludes the government from reviewing it. He is wrong on both points.”
Even if the documents were personal, the Justice Department said, law enforcement authorities are permitted to access personal materials in criminal investigations.
“Nothing in the law prohibits the government from using documents recovered in a search if they are ‘personal,’ and Plaintiff offers no authority suggesting otherwise,” the Justice Department argued.
Prosecutors also criticized Trump’s team for seeming to abandon its previous legal argument that, as former president, Trump could invoke executive privilege over the seized materials. Instead, prosecutors said, Trump’s team has changed course and argued he could simply deem the materials as personal.
Trump’s lawyers refuted that framing in their filing and said that even if Dearie disagrees with their reading of the Presidential Records Act, the former president would still have claim over those documents because of executive privilege.
“The question now before the Special Master is therefore whether a President has the authority to decide whether a document is a ‘Presidential record’ or a ‘personal record,’ ” Trump’s team wrote. “Both the plain language of the PRA and past court decisions answer this question in the affirmative.”
Mary McCord, who served as acting assistant attorney general for national security during the Obama administration, questioned that reading of the Presidential Records Act.
“These are defined terms,” McCord said of the act. “And it is not defined as anything that the president says is personal.”
The Justice Department earlier won an appeal that excluded the 103 documents marked as classified from Dearie’s review, giving federal investigators immediate access to those materials for their criminal probe. The Department’s appeal to overturn the entire special master appointment is pending before the U.S. Court of Appeals for the 11th Circuit.