Attorneys for Donald Trump have repeatedly failed to indicate that the previous president declassified government records that were taken from his Florida home as a part of a criminal investigation, the Department of Justice told a federal appeals court.
The Justice Department made that argument late Tuesday because it sought to resume its review of records marked classified that were seized from Trump’s Palm Beach resort home Mar-a-Lago in an FBI raid last month.
The DOJ’s filing within the U.S. Court of Appeals for the eleventh Circuit swung back at Trump’s lawyers, who earlier Tuesday asked the court to preserve a ruling from a lower federal judge that blocked the federal government from examining the seized documents.
Trump “again implies that he could have declassified the records before leaving office,” federal prosecutors wrote.
“As before, nonetheless, Plaintiff conspicuously fails to represent, much less show, that he actually took that step,” they wrote, referring to Trump.
The DOJ lawyers added that Trump “is now resisting” a request by a court-appointed special master for him to offer evidence that he declassified records that were seized.
“In any event, Plaintiff’s effort to boost questions on classification status is a red herring,” the prosecutors argued. “Even when Plaintiff could show that he declassified the records at issue, there would still be no justification for restricting the federal government’s use of evidence at the middle of an ongoing criminal investigation.”
U.S. District Judge Aileen Cannon had authorized the appointment of the special master, an independent third party who would review the 1000’s of records to discover personal items and data that could possibly be protected by various legal privileges. As a part of that ruling, Cannon temporarily stopped the DOJ from reviewing or using the seized material as a part of its criminal investigation.
The DOJ appealed, asking the eleventh Circuit to lift the a part of Cannon’s order barring it from using the federal government records bearing classification markings and requiring the federal government to reveal those records to the special master.
Lawyers for Trump and the DOJ appeared in Brooklyn, Latest York, on Tuesday afternoon for a conference with the special master, U.S. District Judge Raymond Dearie. He was picked for the role by Trump and appointed by Cannon, who herself had been nominated by Trump.
But in Tuesday’s court conference, Dearie expressed skepticism toward Trump’s lawyers about which, if any, of the seized Mar-a-Lago records had been declassified, NBC News reported.
The DOJ has presented “prima facie evidence” that the documents with classified markings are, in reality, classified, Dearie said. Unless Trump’s lawyers could provide evidence to dispute that stance, “So far as I’m concerned, that is the top of it,” Dearie said.
The FBI raided Mar-a-Lago on Aug. 8, searching for materials showing violations of laws against obstruction of justice and the removal of official records, in addition to the U.S. Espionage Act.
The federal agents seized greater than 100 documents with classified markings in that raid, the DOJ later revealed. Court documents also revealed that the FBI found 4 dozen empty folders marked “CLASSIFIED” in the course of the raid. There are 11,000 documents at issue, Dearie said Tuesday.
Trump and his allies have argued in interviews and on social media that he declassified all the federal government records that were retrieved from Mar-a-Lago. However the ex-president’s lawyers haven’t echoed that claim in court.
On Tuesday, they as a substitute told the appeals court that the DOJ has not proven that the documents are classified, and asserted that a president “has absolute authority to declassify any information.”
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In a footnote, Trump’s lawyers added, “The actual fact the documents contain classification markings doesn’t necessarily negate privilege claims.” They pointed to the incontrovertible fact that, in response to the probable cause affidavit used to acquire the Mar-a-Lago search warrant, some documents with classified markings also include Trump’s handwritten notes.
“Those notes could definitely contain privileged information,” Trump’s lawyers wrote.
In the looks before the special master in Brooklyn federal court on Tuesday afternoon, Trump attorney James Trusty said, “We must always not be able to should disclose” declarations and witness statements in regards to the classification issue, NBC reported.
Dearie replied, “My view is you possibly can’t have your cake and eat it.”