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Trump’s Lawyers Skirt Query of Declassification in Documents Case


A federal judge expressed skepticism on Tuesday concerning the efforts by former President Donald J. Trump’s legal team to avoid offering any proof of his claims that he had declassified sensitive government documents that were seized from his Florida estate last month.

The statements by the judge, Raymond J. Dearie, who’s acting as a special master reviewing the seized materials, were an early indication that he might not be entirely sympathetic to the previous president’s attempts to lavatory down the judge’s evaluation with time-consuming questions over the classification status of among the documents.

“My view is, you possibly can’t have your cake and eat it too,” Judge Dearie said at a hearing called to find out the method he would use to do a sweeping review of materials seized from Mr. Trump.

Judge Dearie, who had been suggested for the role by Mr. Trump’s legal team, was referring to a set of sometimes confusing arguments made by that team because it seeks to limit or delay the Justice Department’s criminal investigation.

Days after the extraordinary search of Mr. Trump’s estate, Mar-a-Lago, the previous president made public statements claiming that he had actually declassified among the seized records, suggesting that the Justice Department had no case against him for illegally retaining sensitive government material. But neither he nor his lawyers have ever made those self same assertions in court — or in court papers — where they may face penalties for lying.

As an alternative, they’ve danced a effective line between suggesting that, as president, Mr. Trump had the authority to declassify the documents, while remaining silent on the difficulty of what he actually did — or didn’t do. At the identical time, Mr. Trump’s lawyers have pursued one other line of argument, telling Judge Dearie that he mustn’t simply take the Justice Department’s word that among the seized records are classified, as prosecutors claim.

At his first hearing as special master, Judge Dearie looked as if it would cut through this confusing web, telling Mr. Trump’s lawyers in direct terms that he was more likely to deem the documents classified — unless they offered evidence on the contrary.

That prompted one among the lawyers, James Trusty, to say that Mr. Trump’s legal team might in the longer term offer that type of evidence — in witness statements, for instance — but that to accomplish that now would telegraph its legal technique to the federal government.

While Judge Dearie was open to the notion that Mr. Trump’s lawyers might in some unspecified time in the future mount a declassification defense, he seemed displeased that they were casting doubt on the federal government’s assertions concerning the classification status of the documents without backing up their claims with evidence.

Along with the documents case, Mr. Trump is facing several civil and criminal investigations into his business dealings and political activities.

Judge Dearie was appointed as a special master last week by a federal judge in Florida, Aileen M. Cannon, who ordered him to perform by Nov. 30 a series of tasks related to the documents. He’s answerable for settling the classification status of about 100 of the records seized from Mar-a-Lago. He has also been given the job of reviewing a bigger trove of about 11,000 documents and determining if any are protected by either attorney-client or executive privilege.

Almost all the things about Judge Dearie’s appointment is unusual — including the undeniable fact that he held the hearing on Tuesday in his own courtroom in Federal District Court in Brooklyn regardless that the lawyers arguing before him were based in Washington and Florida, where Mr. Trump initially requested a special master.

“I realize that I’ve dragged you all to Brooklyn, Recent York,” the judge said because the hearing began, adding that he hoped to maintain such inconveniences at a minimum.

It was also somewhat unusual that Judge Dearie’s work was moving forward whilst the Justice Department waited to get a ruling from an appeals court that might directly affect the case. On Friday, prosecutors asked the U.S. Court of Appeals for the eleventh Circuit in Atlanta to permit them to resume using the 100 classified documents of their investigation of whether Mr. Trump had illegally kept national defense information at Mar-a-Lago or obstructed repeated efforts by the federal government to retrieve the records.

On Tuesday, Mr. Trump’s lawyers filed their very own papers to the identical appeals court, making among the same arguments they’d made before Judge Dearie. They claimed, for instance, that the Justice Department had not proved that the documents it had deemed as classified continued to be classified and hinted that Mr. Trump might actually have declassified them.

“The federal government again presupposes that the documents it claims are classified are, actually, classified and their segregation is inviolable,” the lawyers wrote. “Nevertheless, the federal government has not yet proven this critical fact. The president has broad authority governing classification of, and access to, classified documents.”

But apparently undercutting that argument, Mr. Trusty told Judge Dearie on the hearing that he wanted a few of his legal partners to get expedited top secret security clearances in order that they, too, could view the documents. Mr. Trusty said he already had a top-secret clearance from one other case.

Complicating the matter even further, Julie Edelstein, a lawyer for the Justice Department, told Judge Dearie that a handful of the documents at issue were so secret that even Mr. Trusty’s clearance may not be enough.

Mr. Trusty responded that “it was type of astounding” that the federal government would seek to maintain Mr. Trump’s legal team from seeing among the classified material within the case. They needed to see all of it, he said, to find out whether the federal government had acted properly by removing it throughout the search of Mar-a-Lago.

Much of the hearing was dedicated to more mundane matters of scheduling, as Judge Dearie sought to maneuver the document review along at a brisk pace. He told the parties that they needed to agree by Friday on a vendor that may handle the duty of digitizing the massive trove of fabric in order that the federal government can share it with Mr. Trump’s lawyers.

In a letter to Judge Dearie submitted on Monday, Mr. Trusty said that the schedule set forth for the review was a bit aggressive. Judge Dearie had ordered either side within the case to examine the records and offer their thoughts about whether the documents were privileged or unprivileged, or belonged to the federal government or Mr. Trump, by Oct. 7.

“We respectfully suggest that each one of the deadlines could be prolonged to permit for a more realistic and complete assessment of the areas of disagreement,” Mr. Trusty wrote.

In court on Tuesday, Judge Dearie acknowledged Mr. Trusty’s concerns but said he would push the case forward.

“We’re going to proceed,” he said, “with what I call responsible dispatch.”

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