Donald Trump’s lawyers have repeatedly failed to prove that the former president declassified government documents that were taken from his Florida home as part of a criminal investigation, the Justice Department told a federal appeals court.
The Justice Department made the argument late Tuesday as it sought to resume its review of classified records that were seized from Trump’s Palm Beach Mar-a-Lago resort home in an FBI raid last month.
The Justice Department’s filing in the U.S. Court of Appeals for the 11th Circuit hit back at Trump’s lawyers, who earlier on Tuesday asked the court to uphold a lower federal judge’s ruling that blocked the government from reviewing the seized documents.
Trump “again implies that he could have declassified the tapes before he left office,” federal prosecutors wrote.
“As before, however, Plaintiff clearly fails to present, much less show, that he actually took this step,” they wrote, referring to Trump.
Justice Department lawyers added that Trump is “now resisting” a request by a court-appointed special master to provide evidence that he has declassified the seized records.
“In any event, plaintiff’s effort to raise issues of classification status is a red herring,” prosecutors argued. “Even if plaintiff could prove that he declassified the records in question, there would still be no justification for limiting the government’s use of evidence at the center of an ongoing criminal investigation.”
U.S. District Judge Eileen Cannon had authorized the appointment of a special master, an independent third party who will review the thousands of records to identify personal items and information that may be protected by various legal privileges. As part of that decision, Cannon temporarily stopped the Justice Department from reviewing or using the seized material as part of the criminal investigation.
The Justice Department appealed, asking the 11th Circuit to vacate the portion of Cannon’s order that prohibits the use of government records bearing classification markings and requires the government to disclose those records to the special master.
Attorneys for Trump and the Justice Department appeared in Brooklyn Tuesday afternoon for a conference call with the special master, U.S. District Judge Raymond Deary. He was tapped for the role by Trump and appointed by Cannon, who herself was nominated by Trump.
But at Tuesday’s court conference, Deary expressed skepticism to Trump’s lawyers about which, if any, of the seized Mar-a-Lago records had been declassified, NBC News reported.
The Justice Department has presented “prima facie evidence” that documents with classified markings are, in fact, classified, Deary said. Unless Trump’s lawyers can provide evidence to challenge that position, “As far as I’m concerned, that’s the end of it,” Deary said.
The FBI raided Mar-a-Lago on August 8, looking for material showing violations of the laws against obstruction of justice and the destruction of official documents, as well as the US Espionage Act.
Federal agents seized more than 100 classified documents in that raid, the DOJ later revealed. Court documents also reveal that the FBI found four dozen empty folders marked “CLASSIFIED” during the raid. There are 11,000 documents being reviewed, Deary said Tuesday.
Trump and his allies have claimed in interviews and on social media that he declassified all the government records that were retrieved from Mar-a-Lago. But the former president’s lawyers did not confirm this claim in court.
On Tuesday, they instead told the appeals court that the DOJ had failed to prove the documents were classified and said the president “has absolute authority to declassify any information.”
In a footnote, Trump’s lawyers added, “The fact that documents contain classification markings does not necessarily negate claims of privilege.” They pointed to the fact that, according to the probable cause affidavit used to obtain the search warrant at Mar-a-Lago, some documents with classified markings also included Trump’s handwritten notes.
“These memos may certainly contain privileged information,” Trump’s lawyers wrote.
Appearing before a special magistrate in Brooklyn federal court on Tuesday afternoon, Trump attorney James Trusty said, “We shouldn’t be able to disclose” statements and witness statements regarding the classification issue, NBC reported.
Deariee replied: “My point is you can’t have your cake and eat it too.”