The filing is a response to prosecutors’ warning that U.S. District Judge Aileen Cannon’s unorthodox directive — preventing FBI investigators from accessing the files seized in their Aug. 8 search — was harming national security.
Donald Trump urged a federal judge Monday to keep in place her order that blocked the Justice Department from continuing its criminal investigation into the highly sensitive government records stashed in the basement of his Mar-a-Lago estate.
The filing, a response to prosecutors’ warning that U.S. District Judge Aileen Cannon’s unorthodox directive — preventing FBI investigators from accessing the files seized in their Aug. 8 search — was harming national security, urges the Trump-appointed judge to stay the course.
“In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records,” Trump’s attorneys wrote in a 21-page filing.
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Trump’s newest filing dances around the question of whether Trump declassified any of the records before leaving office — as he has publicly claimed — and instead notes that DOJ has not proven their “classification status.”
“[T]he Government has not proven these records remain classified,” Trump attorney Christopher Kise and other lawyers for the former president wrote. “That issue is to be determined later.”
The filing also notes that Trump designated some of the records as his “personal” property, a broad designation power accorded to sitting presidents, meant to segregate records that have no value to the government.
But again, Trump’s lawyers don’t assert that he actually took this step, and their filing includes no evidence or affidavit from Trump suggesting he took these actions.
“To the extent President Trump may have categorized certain of the seized materials as personal during his presidency, any disagreement as to that categorization is to be resolved under the [Presidential Records Act] and cannot possibly form the basis for any criminal prosecution,” Kise wrote.
Trump’s attorneys lean heavily on a 2012 ruling by U.S. District Court Judge Amy Berman Jackson — once derided by Trump for her handling of the criminal trial of Roger Stone. Jackson, an appointee of former President Barack Obama, dismissed a lawsuit trying to force the National Archives to claim ownership of audio recordings retained by former President Bill Clinton of interviews he did with journalist Taylor Branch.
Jackson ruled presidents have broad discretion to designate records such as the recordings as “personal,” with little, if any, recourse for the government or the public over those decisions, even though the 1978 law requires such personal records to be those without ongoing decision-making value for the Executive Branch.
While Jackson’s ruling isn’t binding precedent, she concluded that Clinton had effectively designated the tapes as personal by not turning them over to the archives when his second term ended in 2001.
DOJ argues that Trump’s situation is distinguishable from Clinton’s in part because some of the documents in question were marked as highly classified material, inherently indicating that they are of immense value to the current government.
Among the more aggressive arguments in Trump’s brief is a suggestion that he could deem records personal under the Presidential Records Act, even if they were classified.
“Classified or declassified, the documents remain either Presidential records or personal records under the PRA,” Trump’s legal team wrote.
In one passage, Trump’s lawyers even argue that he had the right to designate records as personal after he left office. “The former President has sole discretion to classify a record as personal or Presidential,” they write, citing a portion of Jackson’s decision that actually says that designation must be made while a president is in office.
Trump has argued that because the records were created during his tenure, he has an “absolute right” to access them, including by maintaining them at his private residence. The government has contended that regardless of their status, the documents belong to the National Archives and under the control of the current executive branch.
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Trump urged a federal judge to keep in place her order blocking the DOJ from continuing its investigation into the classified records found at Mar-a-Lago https://t.co/8yZ7GtXypr
— POLITICO (@politico) September 12, 2022
Here, Trump's lawyers directly contradict Trump by saying the issue of whether the docs remain classified is "to be determined later." https://t.co/SW1oCoht6f pic.twitter.com/cVLYUNBbWx
— Kyle Cheney (@kyledcheney) September 12, 2022
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