Former President Donald Trump argued in a recent open court hearing that a president should decide whether his White House records are personal documents — and that he had decided that all the records he took to Mar-a-Lago were in fact his personal records. property.  .   

  The argument is Trump’s latest legal effort to halt parts of the criminal investigation into sensitive records kept at his Florida resort and home after he left the White House.   

  The Justice Department responded by saying Trump’s legal theory of when he can consider his White House records personal is flawed.   

  “A plaintiff cannot designate records that qualify as ‘Presidential Records’ under the Presidential Records Act … as his ‘personal’ records simply by saying so,” the department said, adding that such a theory would “nullify” the purpose of the law.   

  The allegations emerged in dueling “global issues” that Trump and the Justice Department filed under seal last week to present their arguments about how special counsel Raymond Dearie, a senior judge in Brooklyn, should approach the review. of materials seized by the FBI.  Trump’s Florida home in August.   

  U.S. District Judge Aileen Cannon — who appointed Dearie to conduct a third-party review of documents that should be withheld from investigators because of privilege issues — unsealed a redacted version of the brief on Monday.   

  The Justice Department told the special master that prosecutors should be allowed to use nearly 2,800 documents in his criminal investigation, while remaining privilege disputes would be eliminated.   

  That would mean criminal investigators could access most of the documents taken from the former president’s Florida resort that are still being disputed, while questions of privilege are resolved with a document Trump claims is covered by the attorney-client privilege and more than 121 documents it says are protected by executive privilege, according to the new DOJ filing.   

  Trump tried to declassify “several hundreds” of seized records in his personal files, the Justice Department said.  While attacking his rationale for doing so, the department also argued that even if the records are personal, they should not be withheld from the federal criminal investigation into the alleged mishandling of materials from the Trump White House found in Mar- a-Lago.   

  The former president argued that if the federal government disagreed with the way Trump classified the records as personal, it should sue him.   

  “Plaintiff was authorized — and actually was — to designate the seized materials as personal records while serving as President,” Trump’s legal team wrote.  “President Trump was still serving his term when the documents at issue were packed, transported and delivered to his residence in Palm Beach, Florida.  So when he made the nomination decision, he was President of the United States.  His decision to keep certain records personal is subject to revocation and, therefore, those records are presumptively personal.”   

  The special review of the disputed documents – which total about 22,000 pages – does not include a review of documents from Mar-a-Lago that have been marked classified.  These are reviewed by intelligence authorities and criminal prosecutors.   

  In addition to rebuking what Trump considers to be personal records, the department also countered Trump’s claims that if Deary rejects Trump’s argument that a document is a personal record, the former president could then seek executive document privilege.  “Special Master should not indulge in this kind of game,” the department wrote.   

  The department also pressed again that Trump must testify under oath whether the administration accurately described what it took from Mar-a-Lago.   

  That would put the former president on the spot to back up public, out-of-court statements suggesting the FBI planted evidence in the investigation.  Trump’s lawyers resisted requests that he corroborate the government’s account of what was seized from his resort.   

  In the new filing, the department pointed to Cannon’s earlier move to block a demand for such a statement.  It did so then based on the principle that Trump had not had an opportunity to review the seized materials, the DOJ noted.   

  “Now that Plaintiff has reviewed the seized materials and has claimed that the vast majority of them are his personal records, the considerations of fairness, integrity, and honesty require that Plaintiff do what the government has done—namely, verify the property inventory or to correct it if he believes it is wrong,” prosecutors said.