Former President Donald Trump admitted he took documents from the White House to Mar-a-Lago, arguing they were designated as personal records rather than presidential records.
Trump's attorneys said, "a President determines whether a document constitutes a Presidential record or a personal record," and "when that decision is made, it is not subject to challenge."
Trump's legal team contends "there is no authority whatsoever for the notion that the Government can seize documents from a President, and simply declare that they are Presidential records."
Federal law permits presidents to deem certain records as "personal" so long as they have no decision-making value to future administrations.
"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," according to Trump's lawyers. "Thus, when he made a designation decision, he was President of the United States; his decision to retain certain records as personal is entitled to deference, and the records in question are thus presumptively personal."
Trump's attorneys made the argument before Judge Raymond Dearie, the special master reviewing the records seized by FBI during the raid last August that was "personally approved" by Attorney General Merrick Garland.
An appeals court granted the Justice Department a partial stay of Judge Aileen Cannon's lower court order, allowing DOJ to continue its criminal investigation using the documents seized.
Cannon had ruled that she "temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master's review or further Court order."
The appeals court sided with DOJ that Cannon "likely erred" in her ruling, preventing DOJ's criminal investigation and requiring prosecutors to allow Dearie to review the documents with classified markings independently.
"The Presidential Records Act authorizes a sitting President to designate records as personal records during his term in office," Trump's attorneys argued. "The contents of the seized materials underscore the fact that President Trump treated these papers as personal records. The documents seized from Mar-a-Lago included [REDACTED]. However, the Special Master has not been tasked with assessing the correctness of President Trump's designations. In other words, it is the President's designation — not the appearance or content of a given document — that is determinative."
Trump's team added, "President Trump need not put forth documentary evidence of his designation decisions because his conduct unequivocally confirmed that he was treating the materials in question as personal records, rather than Presidential records."
The Justice Department argued that Trump's legal arguments were flawed and nonsensical.
"Plaintiff may not designate records qualifying as 'Presidential records' under the Presidential Records Act as his 'personal' records simply by saying so," DOJ told the court. "Plaintiff's designation of certain categories of records as 'personal' records is inconsistent with the text of the PRA."
DOJ then added, "Seeming to recognize that a record cannot both be a 'personal' record and be shielded by executive privilege, Plaintiff has indicated in dozens of instances that he asserts executive privilege only if the Special Master rejects his assertion that a document is a 'personal' record and determines that it is a Presidential record."
The records show Trump was being investigated under 18 U.S.C. 793, part of the Espionage Act, and in relation to "willful retention of national defense information." The records also pointed to 18 U.S.C. 2071, more specifically, the "concealment or removal" of government records, including 18 U.S.C. 1519, related to "obstruction" of a federal investigation.
Dearie is expected to decide next month whether to recommend prosecutors be permitted to access roughly 3,000 documents, though Cannon has the ultimate say. DOJ also has a pending appeal at the 11th Circuit Court of Appeals, requesting the entire process Cannon ordered at Trump's request be shut down.
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