WASHINGTON — Lawyers for former President Donald Trump on Monday asked a judge to continue blocking the Justice Department from reviewing classified documents seized from Trump’s Mar-a-Lago residence.
U.S. District Judge Aileen Cannon last week temporarily blocked the DOJ from using the records seized on Aug. 8 when the FBI searched Trump's home until a special master is able to review them. The DOJ challenged her order later in the week.
In a court filing Monday that called the Justice Department's investigation into the former president "unprecedented and misguided," Trump's lawyers claimed that "there still remains a disagreement as to the classification status of the documents" that bore classified markings. While Trump and his associates have claimed to the media that Trump, while president, declassified various documents, his lawyers did not make that claim explicitly.
The legal battle is over the government's investigation into how hundreds of pages of classified government records continued to be held at Mar-a-Lago, even after a Trump lawyer had certified in June that there were no more classified records at the estate. Cannon, a Trump appointee, granted Trump's request for a special master Sept. 5 and temporarily blocked the government from using the classified files as part of its investigation.
Cannon did say that a national security review of the records could continue, but the Justice Department said that was complicated because the FBI is part of the intelligence community and "classification review and assessment are closely interconnected with — and cannot be readily separated from — areas of inquiry of DOJ’s and the FBI’s ongoing criminal investigation."
Legal experts have called Cannon's ruling deeply flawed, and the Justice Department argued that banning the executive branch from examining classified records that belong to the executive branch would cause “immediate and serious harms to the government and the public.”
The Justice Department last week notified the court it would appeal her ruling and asked Cannon to stay part of her ruling with regard to the classified documents, meaning the government could move forward with acting on the classified records before a special master weighed in.
But Trump's lawyers said such a stay would "presuppose the outcome, at least as regards to what it deems are 'classified records,'" and wrote there "is no indication any purported 'classified records' were disclosed to anyone." The filing also said that, under the Presidential Records Act, the former president "has an unfettered right of access to his Presidential records even though he may not 'own' them." They chalked the dispute over Trump's retention of at least 11,000 pages of government documents up to a "civil matter" that was governed by the records act.
The government, Trump’s team argued, was trying to block a “reasonable first step towards restoring order from chaos and increasing public confidence in the integrity of the process.” It said that, unlike most criminal investigations, this investigation demanded public transparency at every step.
“As this Court correctly observed, a criminal investigation of this import—an investigation of a former President of the United States by the administration of his political rival—requires enhanced vigilance to ensure fairness, transparency, and maintenance of the public trust,” the filing signed by lawyer Christopher Kise read. “Given the significance of this investigation, the Court recognizes, as does President Trump, that it must be conducted in the public view.”
Both the Justice Department and Trump’s team have each proposed two candidates to serve as special master. The Trump team said in a separate filing Monday that it opposed both of the Justice Department's candidates but did not want to spell out the reasons for its opposition on the public record.
The Justice Department on Monday urged the court to select one of its two proposed candidates — retired judges Barbara S. Jones or Thomas B. Griffith — or Raymond J. Dearie, U.S. District Court Judge for the Eastern District of New York, a candidate proposed by Trump's legal team.
"Judges Jones, Griffith, and Dearie each have substantial judicial experience, during which they have presided over federal criminal and civil cases, including federal cases involving national security and privilege concerns," wrote U.S. attorney Juan Antonio Gonzalez and Jay Bratt, the Justice Department’s counterintelligence and export control chief. They said the Justice Department opposed Trump counsel's recommendation of Paul Huck Jr., arguing that he "does not appear to have similar experience."
Many legal experts agree there's a very strong case to be made against Trump, although they say the question of whether to actually charge the former president is a difficult one.
John Yoo, a former George W. Bush-era Justice Department employee who helped write the "torture memos" on interrogation techniques after the Sept. 11 attacks, and whose views of executive power held that the president can order a village slaughtered, said that Trump's actions were clearly against the law.
"Trump is not allowed to have the records and keep them. He could get copies. But he can’t keep them away from the Archives. That’s settled," Yoo said in an interview at the National Conservatism Conference. "It is not whether Trump violated the law. He did. It’s not whether the government had legal grounds for the search warrant. It does. The question is really whether he could be charged."
"The real issue, and I think both people on both sides should recognize this, is, is it a good use of prosecutorial discretion — of judgment — to charge him?" Yoo said. "So my view has been if you’re going to go after a president for the first time in American history for violating a law, I think it should be for something much more important than this. Like, for example, being involved with the Jan. 6 conspiracy."
Trump’s newest filing for the first time refers to what has been called “the Clinton sock drawer case,” a 2012 ruling concerning a former president’s power — in this case, Bill Clinton — to unilaterally decide what is a private record and what is a Presidential Records Act document in his post-presidency.
The case was brought by the conservative group Judicial Watch — which sought to force Clinton to turn over tapes made during his presidency and were, according to a 2007 CBS report, stored at one point in a sock drawer. Judge Amy Berman Jackson, appointed by President Barack Obama, ruled that Clinton did not have to turn them over because they were personal records.
However, unmentioned by Trump’s defenders who began raising the issue of the sock drawer case last month is that Jackson’s ruling explicitly states that the Presidential Records Act distinguishes presidential records from “personal records,” defined as documents that are “purely private or nonpublic character.”