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Trump urges appeals court to keep delay of DOJ’s document probe

Former president repeats District Court arguments

The Justice Department said former President Donald Trump has never told a court that he declassified the documents or that they were personal.
The Justice Department said former President Donald Trump has never told a court that he declassified the documents or that they were personal. (Caroline Brehman/CQ Roll Call file photo)

Former President Donald Trump urged a federal appeals court Tuesday to continue the delay of the Justice Department’s criminal investigation into his keeping classified documents at Mar-a-Lago, his private Florida club.

The filing Tuesday makes broad arguments about Trump’s power over executive documents, including that he had the power to assert executive privilege over documents currently in possession of President Joe Biden’s administration. Trump asked the 11th U.S. Circuit Court of Appeals to keep in place U.S. District Judge Aileen Cannon’s order delaying the DOJ investigation pending a special master review of the documents.

The case has captured the nation’s attention since the FBI searched Mar-a-Lago last month.

“Here, the government has criminalized a document dispute and now vehemently objects to a transparent process that simply provides much-needed oversight,” Trump’s brief said.

Trump reiterated arguments made before the District Court that he had broad powers to declassify documents while in office, and he claimed the government has not proved that documents marked as classified are, in fact, classified.

“Yet, the Government apparently contends that President Trump, who had full authority to declassify documents, ‘willfully’ retained classified information in violation of the law,” Trump’s brief said.

Trump’s attorneys have never claimed he actually marked the documents as personal or declared them declassified despite Trump’s personal statements on social media that he did.

“[D]espite multiple opportunities, Plaintiff has never represented that he in fact took either of those steps — much less supported such a representation with competent evidence,” the DOJ said in an earlier motion requesting that the appeals court overturn a lower court ruling that had stayed the investigation of classified and other government documents found in last month’s search.

On Friday, the government argued that Cannon’s order delaying the investigation had hurt its criminal probe as well as related efforts to assess the damage caused by Trump’s storage of classified documents at the club. 

A group of 11 attorneys general led by Texas’ Ken Paxton made the political implications explicit in their own filing Tuesday, arguing that the Biden administration has practiced “gamesmanship” in the courts in other cases and should not be trusted here.

“In the light of the extraordinary circumstance of a presidential administration ransacking the home of its one-time — and possibly future — political rival,” Trump was justified in seeking outside review, they said.

The Trump filing also comes as his attorneys have sought to slow down the very special master review he requested. Judge Raymond Dearie set an Oct. 7 deadline to finish the document review. Trump’s attorneys argued in a filing in that case that the review should be longer for a “more realistic and complete assessment” of the disputes.

Dearie himself sounded skeptical of the Trump team’s broad assertions about his declassification powers during a hearing in New York on Tuesday.

“You can’t have your cake and eat it too,” Dearie said after Trump attorney James Trusty argued the former president didn’t have to submit evidence that he declassified the documents at issue.

In its filings, the Justice Department laid out a monthslong process from 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.”

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