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(Photo by Win McNamee/Getty Images)
Happy Monday! Trump’s lawyers are having another weird one.
“In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records,” they write in response to prosecutors’ motion Friday seeking to exempt classified documents from the special master’s review of items seized during the August 8 raid on the former president’s country club. They also want to be able to use those classified documents in their ongoing criminal investigation.
Unsurprisingly, Donald Trump would like nothing of the kind. He’d prefer to drag this thing out as long as possible, and hope against hope that he’ll be able to either run out the clock, or make an executive privilege assertion over the relevant documents so as to prevent the Justice Department from using them to criminally prosecute him.
As a threshold matter, Trump is refusing to concede that any of the seized documents are classified, even going so far as to suggest that “the discovery of classified material in files containing Presidential records should not have been at all surprising.” Trump’s lawyers aren’t going so far as to repeat the nonsensical claim of a standing order to declassify everything he took upstairs to his private residence, though. Instead they point to a supposed “disagreement as to the classification status of the documents” and employ scare quotes around all references to “classified records.”
They then go on to insists that during his presidency, Trump had the power to classify or declassify documents at will. And so, they insist, he had every right to pocket top secret records and stash them in his desk drawer in Florida. The problem with this logic is that Donald Trump is no longer president. And so whatever President Biden, i.e. the sitting executive, labels as classified is by definition classified. Trump may argue at some later date that he’s not guilty of mishandling classified documents because they weren’t classified at the time he stole them, but that doesn’t change their status as of today.
And not for nothing, but Judge Cannon already endorsed the government’s classification determination by permitting the Director of National Intelligence to use the documents marked as classified in its ongoing threat assessment from Trump’s egregious mishandling of thousands of pages of government property. Although Trump’s lawyers huff that a pool locker at a country club is basically as safe as a SCIF, so no harm, no foul.
But 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.
Note that there’s no accompanying affidavit here. Trump’s lawyers aren’t going to make this statement under oath, since the FBI recovered a bunch of government property in Trump’s office, including from his desk drawer, where classified documents were mixed in with his passports.
Instead they make a series of bizarre claims that Trump had the right to possess presidential records two years after leaving the White House.
“Indeed, if any seized documents (including any purported ‘classified records’) are Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the PRA,” they argue, adding later that “under the PRA, President Trump has specified rights to restrict access to his Presidential records.”
First of all, the special master is supposed to be a neutral arbiter, and cannot be Trump’s designee. Second, while Trump does retain a “right of access” the PRA specifies that the the National Archives retains ownership and possession of those documents, meaning Trump can go visit them if he wants, but he can’t stuff them in pants and make a run for it. Third of all, the PRA specifically grants the sitting president access to his predecessors’ papers, so it makes zero sense for Trump to argue that he has a right to bar access by the Justice Department, which is part of the executive branch. And finally, the PRA orders the Archivist to release any record in response to a congressional demand and/or to “subpoena or other judicial process issued by a court of competent jurisdiction.”
There’s just no leg for Trump to stand on here. He already lost at the Supreme Court when he tried to stop NARA from releasing his presidential records to the January 6 Select Committee. He’s certainly not going to be able to block the DOJ subpoena, particularly when that subpoena demanded any document bearing a classified marking, not anything that was then currently classified. So the admission that he was hanging onto that stuff is a tacit confession to obstruction. Oopsies!
But Trump’s lawyers have an answer for that … albeit a stupid one. What if before he left the White House Trump said “Hocus pocus, neener neener, I declare all this stuff personal property.”
“Critically, the former President has sole discretion to classify a record as personal or Presidential,” Trump argues. The problem with this conceit, as national security lawyer Kel B. McClanahan points out on Twitter, is that relies on a provision of the PRA which says that documents should “be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.” In short, there’s a procedure to designate documents as personal, Trump can’t take a presidential document, much less a classified one, and simply declare it PERSONAL, like Steve Carell in “The Office.”
These arguments are all nonsense on their face, and so Trump’s lawyers are reduced to implying that there was government misconduct in the search — “Whether it was lawful for the Government to seize those documents has yet to be determined by a court of competent jurisdiction.” — or making dogmatic claims ungrounded in facts or law which are by their nature incriminating.
“What is clear regarding all of the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with NARA, but not with the Department of Justice,” they huff, seemingly oblivious that, if these documents belong to NARA, then it was not legal for him to keep them in his pool locker.
But who knows whether this nonsense will fly with Judge Cannon. Guess we’ll find out soon, since the DOJ has promised to file an emergency appeal to the Eleventh Circuit on Thursday if the special master order isn’t stayed at least with respect to the classified documents.
Trump v. United States [Docket via Court Listener]
United States v. Sealed Search Warrant [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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