President Trump appears set to give the special master assigned to sort through records in his case a headache, according to an early filing from the Justice Department in the matter.
Federal prosecutors on Thursday filed a letter with U.S. District Judge Raymond Dearie for the Eastern District of New York outlining disputes between the government and Trump over which of an initial batch of records were off-limits to investigators for various reasons.
The DOJ said that out of 15 documents, Trump wants to say that nine are personal records under the Presidential Records Act, and that an overlapping four records are subject to executive privilege.
Trump’s assertion of executive privilege after leaving office has frustrated and confounded legal observers, who question how privilege meant to protect the executive branch can be asserted against it.
The DOJ used that argument in its letter, saying that it did not believe there was “privilege against the executive branch.” For cases where Trump claimed that records were both personal and subject to executive privilege, it questioned the logic around the apparent creation of a potentially new type of document: one both governmental and also personal to Trump.
“Plaintiff cannot logically assert Executive Privilege over two of the documents…because the parties agree that those documents are personal and not Presidential records,” prosecutors wrote. “Only official records are subject to assertions of Executive Privilege.”
It’s the latest example of a tactic that Trump has used for the six years of scandal that have accompanied him since he won the presidency: raise as many disputes as possible, legitimate or not, to muddy the waters and slow things down.
At a hearing on Tuesday, Dearie, the special master whose appointment Trump supported, emphasized to the two parties that they needed to support their privilege claims with evidence, and suggested that he would be skeptical towards executive privilege claims over personal records.
But the letter, though only covering a small batch of non-classified records seized from Mar-a-Lago in August, suggests that Trump may intend to raise extensive disputes before the special master over the coming months.
The DOJ said that six of the records that Trump wants to claim are personal have to do with Trump’s pardon authority as president, while two of them have to do with immigration policy. Another has to do with an email exchange involving the Air Force Academy’s baseball coach.
Trump claimed, per the DOJ, that two records — one referring to “meeting requests” and another referring to “questions for POTUS approval” — are covered by executive privilege and constitute personal records.
Per the DOJ letter, Trump claims that some of the documents capture communications between himself and his advisers, thereby making them qualify for protection under executive privilege.
The privilege was first created to protect deliberations between a president and his advisers. The DOJ pointed out in its letter that Trump is no longer President.
“Even if Plaintiff were permitted to assert executive privilege against the Executive
Branch, that assertion would fail here because the government has a ‘demonstrated, specific need’ for this evidence in its ongoing criminal investigation,” prosecutors wrote.