Former US President Donald Trump speaks to the press at his Mar-a-Lago resort on midterm election night in Palm Beach, Florida, US, November 8, 2022.
Ricardo Arduengo | Reuters
But federal prosecutors say he can’t consider the records personal “simply speaking.”
In a new court filing, the Justice Department also accused Trump of “gamesmanship,” saying he would assert executive privilege over dozens of documents if a court-appointed monitor rejected his claim that they were “personal.”
The battle over what Trump’s alleged words mean is unfolding in federal court in Florida, where lawyers for the former president and Justice Department attorneys last week briefed a judge on the status of issues related to documents seized in early August from Trump’s mansion. a-Lago Club in Palm Beach. Court records were unsealed Monday.
The Justice Department is conducting a criminal investigation into Trump’s removal of government documents from the White House and possible obstruction of justice related to the backlog in returning those documents from him. More than a hundred documents have received a seal of secrecy.
Government records are by law the property of the government and must be transferred to the National Archives and Records Administration when the president leaves office.
A court-appointed monitor, known as a special master, reviews the records to determine which ones should be withheld pending review by the Justice Department as part of its investigation because of possible privilege. These include documents that are personal or that are an official privilege.
In a statement last week, Trump’s lawyers wrote: “The Presidential Documents Act allows a sitting president to designate documents as personal during his time in office.”
“The question now before the Special Master is whether the president has the authority to decide whether a document is a ‘presidential record’ or a ‘personal record,'” the lawyers wrote.
“Both the plain language of the PRA and past court decisions answer this question in the affirmative,” they added.
Trump’s lawyers continued to say that he was still acting as president when the documents were packed, transported and delivered to Mar-a-Lago.
“So when he was making the appointment decision, he was the president of the United States; his decision to keep certain records private deserves respect, and thus the records at issue are presumptively personal,” the lawyers wrote.
A detailed inventory of documents and other items seized from former US President Donald Trump’s Mar-a-Lago estate has been released after the document was released to the public by the U.S. District Court for the Southern District of Florida in West Palm Beach, Florida on September 2, 2022.
Jim Burg | Reuters
The lawyers also argued that the special master was not instructed to evaluate the “correctness” of Trump’s designation of the records.
“The determining factor is the appointment of the president, not the appearance or content of this or that document,” they wrote.
Justice Department lawyers ridiculed those arguments in their brief.
Trump “cannot designate records that qualify as ‘presidential documents’ under the Presidential Records Act … as his ‘personal records’ simply by saying so,” the Justice Department lawyers wrote.
The lawyers added that neither the law nor court precedent gives Trump “an opportunity to ignore the statute by removing presidential documents from the White House, storing them (without authorization) in personal storage, and then ‘considering'[ing]”they must be ‘personal.’
The Justice Department also argued that if Trump “classifies a document as a personal record, then he cannot claim executive authority over that document.”
The lawyers write that personal records are private and are not relevant to or affect the president’s performance of his duties, while the executive privilege “protects the president’s official communications.”
Apparently, Trump recognizes that “a document cannot be both a personal record and protected by executive privilege,” and has identified dozens of records “that he claims executive privilege only if the special master rejects his contention that the document is ” “personal” record and determines that it is a presidential record,” the lawyers of the Ministry of Justice wrote.
“The special master should not condone such skill,” the lawyers wrote.
Justice Department lawyers said Trump could not claim executive authority to withhold seized documents from investigators.
In any case, they noted that he asserted executive authority over only 121 documents out of more than 2,900 seized, the lawyers said.
Because of this, “there is no reason to continue to restrict the government’s review and use for criminal investigation purposes of the remaining 2,794 documents,” the attorneys wrote. “Thus, the expert must recommend an injunction against the remaining documents [which bars DOJ from reviewing them for now] … be lifted up.”
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