Trump Says His Designation of Documents Taken to Mar-a-Lago ‘Is Not Subject to Challenge’

Trump Says His Designation of Documents Taken to Mar-a-Lago ‘Is Not Subject to Challenge’
Former U.S. President Donald Trump speaks at a 'Save America' rally in Robstown, Texas, on Oct. 22, 2022. (Brandon Bell/Getty Images)

Documents relocated from the White House to former President Donald Trump’s Florida property had been designated as personal, his lawyers insist, according to newly released court documents.

Trump’s legal team stated that under the Presidential Records Act, it’s primarily up to the then-sitting president to determine whether those Mar-a-Lago materials seized by federal agents in early August constitute a government record, and the decision “is not subject to challenge” once it was made.
“President Trump was still serving his term in office when the documents at issue were packed, transported, and delivered to his residence in Palm Beach, Florida,” the ex-president’s lawyers wrote in a 21-page filing (pdf). “Thus, when he made a designation decision, he was President of the United States; his decision to retain certain records as personal is entitled to deference, and the records in question are thus presumptively personal.”

“In other words, it is the President’s designation—not the appearance or content of a given document—that is determinative,” they wrote, adding that there’s no need for the former president to present documentary evidence to confirm the designation, as his conduct has “unequivocally” proved it.

The Justice Department contradicted the claim, saying it is inconsistent with the Presidential Records Act and would “nullify the statutes entire purpose” of the written law by allowing a president to remove all official records at the end of a presidency. Government lawyers told the court in a Nov. 8 court filing (pdf) that Trump cannot decide a record is his personal property “simply by saying so” or “simply by the act of removing them from the White House.”

The recently unsealed filings were made to retired Judge Raymond Dearie, who is now the independent arbiter, known as a special master, to review the materials and determine whether any documents are privileged and should be excluded from federal investigators’ evidence cache.

Trump’s legal battle against the DOJ came after the FBI seized over 11,000 documents and materials at his Florida home and resort, including some 100 documents marked classified or top secret. His lawyers have since August sought to limit document access in the criminal inquiry, while the former president declared he declassified the materials when he left office.

Calling Trump’s dispute “a shell game,” the Justice Department said if the former president categorizes a document as a personal record, then he can no longer assert executive privilege over it, adding that the special master “should not indulge this type of gamesmanship.”

“Plaintiff has indicated in dozens of instances that he asserts executive privilege only if the Special Master rejects his assertion that a document is a ‘personal’ record and determines that it is a Presidential record.”

U.S. District Judge Aileen Cannon, who is presiding over Trump’s lawsuit and named Dearie, had once temporarily blocked the DOJ from continuing its review of the seized materials and using the materials for investigative purposes, “pending completion of the special master’s review or further Court order.”
A panel of three judges on the 11th Circuit Court of Appeals on Sept. 21 unanimously overturned parts of Cannon’s ruling to allow the DOJ to regain access to documents that bore classified markings.
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