(WASHINGTON) — The Justice Department is accusing former President Donald Trump and his legal team of engaging in “gamesmanship” in their battle to retain thousands of records seized from Trump’s Mar-a-Lago resort that are now in the hands of a court-appointed special master.
Trump’s attorneys assert that when he ordered the packing of materials in the White House that were then transported to Mar-a-Lago, they were in effect automatically designated as his own personal records. But at the same time, his attorneys say if special master Raymond Dearie rejects that argument for certain documents he’s reviewing, they should have the opportunity to claim they are covered by executive privilege.
“The Special Master should not indulge this type of gamesmanship,” department officials said of Trump’s position.
The filings from Trump’s team and DOJ, unsealed Monday morning, responded to Dearie’s demand that both parties lay out so-called “global issues” that he will seek to address as he filters through the roughly 3,000 documents and determines what recommendations to make to district judge Aileen Cannon on records that should be handed back over to prosecutors in their ongoing criminal investigation.
Dearie’s recommendations to Cannon are due by Dec. 16 — though it’s unclear when she might rule on the matter or if she’ll accept his proposals.
DOJ is simultaneously seeking to overrule Dearie’s appointment and put a stop to the special master process before the 11th Circuit Court of Appeals. Prosecutors had previously succeeded in arguing for the 11th Circuit to stay a portion of Judge Cannon’s ruling that ordered them to hand over to Dearie roughly 100 documents with classification markings seized from Mar-a-Lago and enjoined the FBI from using them in its ongoing criminal investigation.
The department has said that its inability to access the thousands of non-classified documents seized from Mar-a-Lago has served to hamper their ongoing investigation, an argument they restated in their filing Monday.
“The government’s compelling need for these materials is plain, and the Special Master should reject Plaintiff’s attempts to use vague and unsupported assertions to further delay the investigation,” they said Monday.
They also accused Trump’s legal team of offering a “sweeping and baseless theory” to support their claims over the documents under a reading of the Presidential Records Act, saying Trump “appears to be claiming that he can unilaterally ‘deem’ otherwise Presidential records to be personal records by fiat.”
“Such a reading of the PRA would nullify the statute’s entire purpose by allowing a President to designate all of his official records as ‘personal’ records and then to remove them upon departure from the White House,” DOJ official Jay Bratt said in the filing. “It would reduce the PRA’s detailed definitions of ‘Presidential records’ and ‘personal records’ to mere suggestions.”
And even if Trump were correct in his claims, DOJ says, it would amount to a “red herring” regarding their right to access the documents as part of their ongoing investigation.
“Documents commingled or collectively stored with the classified materials located at Plaintiff’s premises were lawfully seized by the FBI in accordance with the terms of the court-authorized search warrant because of their relevance to the government’s ongoing investigation,” Bratt said. “That relevance exists irrespective of whether they were personal papers or government records. In the absence of a valid and substantiated claim of privilege, all such documents must now be made available to the investigative team.”
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