Former President Donald Trump hasn’t provided any evidence that he declassified records that FBI agents seized from Mar-a-Lago in August, U.S. Department of Justice (DOJ) lawyers told an appeals court in a brief filed late on Sept. 20.
Trump “again implies that he could have declassified the records before leaving office. As before, however, Plaintiff conspicuously fails to represent, much less show, that he actually took that step,” government lawyers said in the filing.
“Plaintiff is now resisting the special master’s proposal that he identify any records he claims to have declassified and substantiate those claims with evidence,” they added.
The DOJ brief was a response to a Trump filing in which lawyers for the former president said that U.S. officials haven’t proven that Trump held classified records.
About 100 records marked as classified were seized from Mar-a-Lago, Trump’s home in Florida. The government and Trump have consistently disagreed over the status of the records.
Lawyers for Trump, and Trump himself, have said he declassified the records before leaving office in 2021.
But the government has maintained that there’s no proof that supports that position, a theme it returned to in the latest brief.
Trump “gets the law backward by asserting that the government must ‘prove’ that records with classification markings are classified. The government has submitted a detailed inventory cataloging the classification markings, as well as a redacted photograph showing some of the relevant markings. Records marked as classified must be treated as such ‘in the absence of affirmative proof to the contrary,'” DOJ lawyers said, citing a previous ruling in a different case.
“Plaintiff, as the party seeking relief, bore the burden of proof. Yet despite multiple opportunities, Plaintiff has never actually represented—much less offered evidence—that he declassified any of the relevant records.”
The argument was offered to the U.S. Court of Appeals for the 11th Circuit, which is weighing a request by the government to block Trump’s lawyers and U.S. District Judge Raymond Dearie, a Reagan appointee who is serving as a special master for the records, from seeing the ones marked classified. The government also wants the ability to use the documents in its ongoing criminal investigation into Trump.
The U.S. lawyers noted that Trump lawyers declined to offer proof of declassification to Dearie prior to a hearing held on Sept. 20, and in the hearing itself.
James Trusty, a lawyer for Trump, told Dearie during that hearing that he needed to see the documents before advancing the declassification argument.
“We’re not in the position without having seen the physical evidence, and without having a chance to fully explore what these documents purport to be, to tell the Court in good faith that I know that I have an argument to be made about declassification,” he said.
“We have not been in a position, nor should we be at this juncture, to fully disclose a substantive defense relating to declassification until we see the documents and have an opportunity to explore our options under a filing under §41(g),” he added later, referring to a motion for the return of seized property.
Dearie said that, at some point, if the government offers evidence that the documents remain classified, Trump’s team would have to respond or face a negative ruling.
“If the Government essentially gives me prima facie evidence that these are classified documents and you, for whatever reason, decide not to advance any claims claim of declassification which I understand is your prerogative, I’m left with a prima facie case of classified documents,” Dearie said. “And as far as I’m concerned, that’s the end it.”