“Even yesterday, the Government’s Response gratuitously included a photograph of allegedly classified materials, pulled from a container and spread across the floor for dramatic effect,” Trump’s attorneys wrote (pdf), referring to a picture that was included in a DOJ-submitted court document. The photo showed alleged classified documents marked “TOP SECRET” strewn about on a floor in a Mar-a-Lago storage room.
The 45th president is seeking the appointment of a special master, or a neutral third party approved by a judge, to review the documents and material that were taken by FBI agents on Aug. 8.
One reason, lawyers argued in Wednesday’s filing, is because Trump and his team believe the DOJ would leak portions of its case against Trump to mainstream media outlets. Throughout his presidency, both the FBI and DOJ were accused by Republicans of leaking details to the press to construct a narrative to damage Trump politically.
“Left unchecked, the DOJ will impugn, leak, and publicize selective aspects of their investigation with no recourse for Movant but to somehow trust the self-restraint of currently unchecked investigators,” wrote Trump’s lawyers.
Jay Bratt, a top DOJ lawyer, was questioned about the leaks during a hearing on Thursday.
“Let me ask also, there has been some discussion in the filings related to leaks or disseminations of information to the media. Are you aware, Mr. Bratt, of any such dissemination to the media, relative to the contents of the seized records,” U.S. District Judge Aileen Cannon, a Trump appointee, asked.
“Not on the part of anybody that I’m working with. Obviously, I see the same things in the press that other people do. It’s bad. People are talking,” Bratt said.
“If people on the government’s side are talking about it, I’m not aware of anybody that we work with that has had contact with the press and certainly don’t condone it in any way,” he added.
The DOJ also argued that a special master is no longer needed because its filter team already carried out a preliminary review of the documents that were taken last month. Trump’s lawyers responded by saying that the team never contacted the former president’s attorneys.
Cannon said she will issue a ruling on the special master request in the future, after appearing to question the federal government’s arguments against appointing a special master.
“What is the harm in the appointment of a special master?” the judge said Thursday. “I guess what I’m wondering from the government is what is your articulation of harm other than just the general concern that it would delay a criminal investigation?”
Bratt argued that Trump doesn’t currently have the same legal privileges that were afforded to him while president.
“He is no longer the president, and because he is not … he was unlawfully in possession of them,” Bratt said of the documents.
An unsealed warrant and heavily redacted affidavit that were released last month showed the DOJ is investigating Trump for possible violation of the Espionage Act and obstruction of justice. Meanwhile, Trump has maintained that the documents that were taken were declassified by him when he was still in office.