Trump pushes back in court fight over records found at Mar-a-Lago

Former president’s lawyers did not claim that he actually declassified the specific documents found in the FBI criminal probe

Former President Donald Trump addresses the America First Policy Institute's America First Agenda Summit in July.
 (Tom Williams/CQ Roll Call file photo)
Former President Donald Trump addresses the America First Policy Institute's America First Agenda Summit in July. (Tom Williams/CQ Roll Call file photo)
Posted September 12, 2022 at 1:01pm

Attorneys for former President Donald Trump argued Monday against any pause in a Florida judge's order for a special master to review documents seized in an FBI search of Mar-a-Lago last month.

In a filing in the U.S. District Court for the Southern District of Florida, Trump made broad claims about his powers after the presidency in the case, which he filed amid a criminal investigation into documents marked as classified found during a search of his Florida residence.

Trump responded to the Justice Department’s effort last week to lift a preliminary injunction that orders a halt to the use of those documents in the criminal probe. And Trump urged Judge Aileen Cannon to keep in place the order subjecting those documents to special master review.

“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,” Trump’s filing said.

The Justice Department has argued Cannon should at least allow investigators to use those seized documents that are marked as classified, arguing Trump could not argue they were subject to any privilege and were not his personal papers.

Trump in his response Monday argued that the government has not proven that the documents marked as classified are classified. The brief discussed in several places that Trump had the authority to classify documents while in office but did not claim that Trump actually declassified the specific documents he had at Mar-a-Lago.

“[T]he Government has not proven these records remain classified. That issue is to be determined later,” the filing said.

While Trump has claimed in numerous statements and posts on his social media website, Truth Social, that he had declassified the documents at issue, his attorneys have yet to make that claim in court.

Trump’s Monday filing also made sweeping claims about his authority over documents as a former president, including a claim that the former president could designate records as personal after his term ended.

“Critically, the former President has sole discretion to classify a record as personal or Presidential,” the brief said.

However, the statute does not appear to give the former president that authority and instead specifies that such records be categorized as personal or presidential “upon their creation.” The court case cited by Trump also specifies that the categorization occurs during a presidency.

Trump’s response also states that all records seized in the search were either presidential or personal records, which the government has not conceded. Files belonging to other agencies are governed by the Federal Records Act, which does not have provision for lawful access by a former president.

The DOJ argued last week in a court filing that the order could hamper efforts to find out whether Trump still has more sensitive secrets and “could impede efforts to identify the existence of any additional classified records that are not being properly stored — which itself presents the potential for ongoing risk to national security.”

Trump’s filing Monday downplayed that risk, arguing the Justice Department’s delay in seeking the documents belied their dangerous nature.

In its filings, the Justice Department laid out a monthslong process from both the National Archives and Records Administration seeking documents from Trump.

That process led to last month’s search of Mar-a-Lago by FBI agents, after evidence was found that Trump may have kept sensitive documents there. The judge who approved the search later allowed public release of a receipt, which showed 11 sets of documents with some form of classification and four marked as “Top Secret.”