Ricardo Arduengo | Reuters Former President Donald Trump’s lawyers argue that hundreds of documents seized by the FBI from his Florida residence are “personal” because he said so. But federal prosecutors say he can’t make the records personal “just by saying so.” In a new court filing, the Justice Department also accused Trump of “gamesmanship” by saying it would assert executive privilege over dozens of documents if a court-appointed custodian rejects his claim that they are “personal” in nature. The war over what Trump’s alleged words mean is playing out in a federal court in Florida, where lawyers for the former president and Justice Department lawyers briefed a judge last week on the status of issues related to records seized in early August by Trump. a-Lago Club in Palm Beach. The legal documents were unsealed on Monday. The Justice Department is criminally investigating Trump for removing government records from the White House and possible obstruction of justice related to his delay in returning those documents. More than a hundred documents were marked as classified. State archives are by law the property of the government and must be transferred to the National Archives Authority when the president leaves office. A court-appointed watchdog, known as a special master, reviews the records to determine which should be barred from being reviewed by the DOJ as part of its investigation because of possible privilege. These include documents that are personal or subject to executive privilege. In their filing last week, Trump’s lawyers wrote: “The Presidential Records Act authorizes a sitting President to designate records as personal records during his term.”
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“The questions now before the Special Master are therefore whether a President has the authority to decide whether a document is a ‘presidential record’ or a ‘personal record,’” the lawyers wrote. “Both the plain language of the PRA and prior judicial decisions answer this question in the affirmative,” they added. Trump’s lawyers went on to say he was still serving as president when the documents were packed, transported and delivered to Mar-a-Lago. “Therefore, when he made a designation decision, he was the President of the United States; his decision to keep certain records personal is revocable, and those records are presumptively personal,” the lawyers wrote. A detailed inventory of documents and other items seized from former US President Donald Trump’s Mar-a-Lago estate appears after the document was released by the US District Court for the Southern District of Florida in West Palm Beach, Florida. September 2, 2022. Jim Bourg | Reuters The lawyers also argued that the special master is not tasked with evaluating “the correctness” of Trump’s designation of the records. “It is the President’s designation that is decisive, not the appearance or content of a given document,” they wrote. DOJ lawyers scoffed at those arguments in their own brief. Trump “cannot designate records that qualify as ‘Presidential records’ under the Presidential Records Act … as his ‘personal records’ simply by saying so,” the Justice Department lawyers wrote. The lawyers added that neither that law nor court precedent gives Trump “the ability to ignore the statute by removing presidential records from the White House, keeping them (without authorization) in personal storage, and then “considering[ing]”to be ‘personal’”. The Justice Department also argued that if Trump “classifies a document as a personal record, then he cannot claim executive privilege over that document.” The lawyers wrote that personal records are private in nature that do not relate to or affect a president in the performance of his duties, while executive privilege “protects presidential communications related to the performance of official duties.” Trump apparently recognizes that “a document cannot be both a personal record and protected by executive privilege” and has identified dozens of records “that he claims executive privilege only if the Special Master rejects his claim that a document is a ‘personal’ record and determines that this is a presidential record,” DOJ lawyers wrote. “The Special Teacher should not engage in this kind of game,” the lawyers wrote. Justice Department lawyers went on to say that Trump cannot claim executive privilege to withhold the seized documents from investigators. Either way, they noted, he has claimed executive privilege for just 121 of the more than 2,900 documents seized, the lawyers said. Because of this, “there is no basis to continue to limit the government’s review and use for purposes of a criminal investigation of the remaining 2,794 documents,” the lawyers wrote. “The Special Master should therefore recommend that a Court order be made in respect of these remaining documents [which bars DOJ from reviewing them for now] … to be removed”.
