Washington — Attorneys from the Department of Justice have accused former President Donald Trump and his legal team of participating in a “shell game” in the ongoing dispute over records the former president moved from the White House to his estate in South Florida upon leaving office.
In a filing with the independent arbiter appointed to review the documents seized by the FBI during its August 8 search at Mar-a-Lago, which was unsealed on Monday, federal prosecutors argued the former president falsely claimed the materials he kept were “personal” and therefore did not need to be turned over to the National Archives and Records Administration at the end of his presidency in January 2021.
“Appearing to recognize that a document cannot simultaneously be both a ‘personal’ record and protected by executive privilege, [Trump] has indicated that he will only assert executive privilege if the special master rejects his claim that a document is a ‘personal’ record and determines that it is a presidential record,” the Justice Department wrote. The special master should not engage in a shell game.
The special master is a third-party reviewer who is sorting through more than 11,000 papers obtained from Mar-a-Lago by federal investigators and distinguishing those that may be shielded by executive privilege or attorney-client privilege claims. In September, Aileen Cannon, the U.S. district judge presiding over the ongoing court battle over the confiscated papers, appointed veteran federal judge Raymond Dearie as special master.
In its filing to Dearie, which outlined five “global issues” regarding executive privilege and the designation of some documents as “personal,” the Justice Department stated that Trump cannot claim a document is private under federal records law “while simultaneously claiming, as a backup, that it contains confidential executive communications.”
They stated of Trump, “At the very least, this type of gamesmanship should significantly diminish the weight of the plaintiff’s executive privilege arguments.”
The Presidential Records Act (PRA), the legislation governing the preservation and ownership of presidential papers, allows presidents to declare certain records as personal, exempting them from the statute’s preservation and transfer requirements to the National Archives.
The government emphasized that the PRA defines personal documents as “records of a wholly private or non-public nature that do not relate to or affect the president’s constitutional, statutory, or other official or ceremonial duties.”
The former president cited attorney-client privilege over one document out of 2,916, according to federal prosecutors, and executive privilege as the primary basis for withholding 16 documents.
Investigators are examining whether Trump or others close to him mishandled sensitive data during the 2021 presidential transition; a search warrant was executed at Trump’s Florida property as part of this probe.
In the current disagreement, it is at issue whether the majority of the confiscated materials — the documents without classification markings — are protected and should be withheld from investigators. A federal appeals court determined that prosecutors may use the 103 sensitive papers in the ongoing inquiry, despite Cannon’s initial prohibition against doing so.
In a recently released brief, prosecutors argued that the modest number of documents over which the parties disagree justifies the relaxation of Cannon’s limits on the probe.
Trump’s team has maintained, however, that the items confiscated from the former president’s home are both his personal, non-presidential records and are protected by executive privilege.
Trump “was still serving his term when the documents at issue were packed, transported, and delivered to his residence in Palm Beach, Florida,” his legal team wrote in a filing, arguing that his decision to remove the documents from the White House renders them “presumptively personal” and exempt from any criminal statute.
His attorneys maintained that because the former president “handled” the documents as personal, their legal status as presidential records was no longer valid. And if Dearie were to reject this argument, Trump’s legal team contends that the special master should still decide that some of the records were protected by executive privilege claims and shield them from criminal investigators.
Trump and his attorneys have relied on a 2012 decision by a Washington federal district court in a dispute between the conservative nonprofit Judicial Watch and the National Archives over audiotapes created by former President Bill Clinton and a historian during his administration and stored in Clinton’s sock drawer. U.S. District Judge Amy Berman Jackson dismissed the complaint, concluding that the Archives lacked the power to identify information as “presidential records.”
His legal team wrote, “The PRA is clear: a president determines whether a document is a presidential record or a personal record.” President Trump exercised his authority in this situation.
But Justice Department attorneys warned that accepting Trump’s argument that he can unilaterally designate the contested records as “personal” would “nullify the statute’s entire purpose by allowing a president to designate all of his official records as “personal” records and then remove them upon leaving office.”
“It would reduce the comprehensive definitions of ‘presidential record’ and ‘personal record’ in the Presidential Records Act to mere recommendations,” prosecutors told Dearie.
Prosecutors contended, reiterating that they are in the midst of a criminal investigation into the illegal retention of documents and charges of obstructing the inquiry, that “law enforcement officials undertake judicially authorized searches to seize evidence of crimes.”
They wrote: “Nothing in the law forbids the government from using ‘personal’ documents found during a search, and [Trump] cites no evidence to the contrary.”
In a second letter to Dearie, government attorneys disclosed that Trump may have mixed sensitive government records with personal items after leaving office.
Two documents with classified marking cover sheets, one labeled SECRET and the other labeled CONFIDENTIAL, were allegedly intermingled with three personal conversations that “are either dated or by content occurred after plaintiff’s administration ended.” Prosecutors wrote that these messages came from a religious leader, an author, and a pollster.
“Because the plaintiff could only have received the documents with classification markings in his capacity as president, the entire mixed document is a presidential record,” argued top Justice Department officials, including assistant attorney general for national security Matthew Olsen and counterintelligence chief Jay Bratt.
In an earlier filing, the Justice Department informed the court that three records carrying classified marks were discovered in a desk in Trump’s office at Mar-a-Lago on August 8, and were later seized by the FBI. In addition, a thorough inventory of the seized goods revealed earlier this year suggested that secret information may have been mixed in with clothing, newspaper clippings, and books.
Since the search warrant was executed in August, the FBI investigation into Trump’s handling of classified documents has intensified. A Mar-a-Lago employee seen on security camera footage moving boxes at the property reported to investigators that the former president instructed him to relocate the boxes to a new location during the federal inquiry, according to a source with knowledge of the probe.
This employee, Walt Nauta, and Trump associate Kash Patel testified before a grand jury in Washington, D.C., as part of the investigation. A spokeswoman for Patel stated last week that “his testimony was compelled against his will by the only legal mechanism available to the government: a grant of limited immunity.”