Nearly two years out of office, former President Trump continues to argue that he’s imbued with the powers of the presidency.
In a filing unsealed on Monday submitted to the special master adjudicating documents seized in the Mar-a-Lago raid, Trump claimed that the simple act of moving classified government records from the White House to his south Florida resort was enough to not only declassify the records, but make them “personal” — meaning that the government has no authority to demand them back.
“President Trump was still serving his term in office when the documents at issue were packed, transported, and delivered to his residence in Palm Beach, Florida,” attorneys for Trump wrote.
They added in the filing that since Trump was President when he moved the records, that qualified as a “designation decision,” and that, therefore, the records are “presumptively personal.”
It’s a repeat of what Trump and those around him have suggested since the National Archives and Records Administration referred the matter for the FBI in February: that Trump did not have to do anything apart from being himself to render records personal, or declassified.
The DOJ fired back in a separate brief also unsealed on Monday, urging the special master, U.S. District Judge Raymond Dearie for the Eastern District of New York, to ignore what they described as a “shell game” from Trump.
The former president himself perhaps put his argument most succinctly in September, telling Fox News’s Sean Hannity that “you can declassify just by saying it’s declassified — even by thinking about it.”
Trump has also argued that some records could be both governmental and personal — that he could say they were off limits from criminal investigation due to executive privilege, and that they were also personal records.
That’s the lack of division between the personal and the governmental which characterized Trump’s administration, and which his attorneys attempted to clean up in their brief.
Trump’s lawyers argued that he would assert executive privilege only in cases when Dearie had decided that a record was not personal — effectively trying to use it as an insurance policy for records that the special master decides belong to the government, and not to Trump.
“That is a shell game, and the Special Master should not indulge it,” prosecutors wrote in response.
The argument came as Dearie begins to sift through non-classified records seized by the FBI in August from Mar-a-Lago.
Trump sued to appoint a special master weeks after the raid. He scored a shocking win when U.S. District Judge Aileen Cannon for the Southern District of Florida took the legally unforeseeable step of ordering the DOJ to stop using the Mar-a-Lago records for its investigation, and installing an independent arbiter to decide which documents should go to the DOJ, and which should be returned to Trump.
Prosecutors won a reprieve from the portion of Cannon’s order that dealt with classified records, and are challenging Dearie’s appointment in an appeal before the Eleventh Circuit.
