Special Master Skeptical Of Trump Attorneys’ Declassification Claims

Topline

Attorneys for former President Donald Trump continued to argue in court Tuesday that the Justice Department cannot shield classified documents seized at Mar-A-Lago from a third-party special master, but they still refuse to back up their argument by saying whether Trump actually declassified any documents—and the special master doesn’t seem pleased about it.

Former President Donald Trump’s Mar-a-Lago resort on February 11 in Palm Beach, Florida.

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Key Facts

Trump’s attorneys told the 11th Circuit Court of Appeals in a court filing Tuesday it should reject a request from the DOJ to hang on to approximately 100 classified records while former district Judge Raymond Dearie, appointed as a third-party special master, reviews documents seized at Mar-A-Lago to filter out privileged materials.

The DOJ appealed a ruling from U.S. District Judge Aileen M. Cannon that ordered a special master to review all of the documents the government seized from Mar-A-Lago, arguing the agency should be able to shield the classified documents from the special master and continue to use them for its investigation.

The DOJ “has not yet proven” that documents are actually classified, Trump’s attorneys argued, noting that Trump had “absolute authority to declassify any information” when he was president—but they declined to say whether or not he actually did.

Trump’s attorneys said in a separate court filing Monday that they refused to answer questions on whether the ex-president declassified documents—as he claims on social media to have done—arguing it could harm their criminal defense to talk about what they declassified now if Trump later gets indicted.

Dearie pushed back on the Trump team’s refusal to explain any declassifications during a hearing Tuesday afternoon, Politico and Reuters report, saying the attorneys “can’t have your cake and eat it” by arguing the documents may have been declassified but not saying whether they actually were.

The special master also suggested the DOJ had provided sufficient evidence that the documents are classified because they’re marked as such, Politico reports, and the burden of proof is on Trump—not the government—to prove that the documents are privileged or declassified.

Crucial Quote

“The Government again presupposes that the documents it claims are classified are, in fact, classified,” but the DOJ “has not yet proven this critical fact,” Trump’s attorneys James Trusty and Christopher Kise argued in a court filing Tuesday, adding Trump as president had “broad authority governing classification of, and access to, classified documents” and had “absolute authority to declassify any information.”

What To Watch For

Dearie has been ordered to complete his review of the documents seized at Mar-A-Lago by November 30. The process is still in its earliest phases after he was named as the special master last week. Whether or not classified documents will be included in that review still remains to be seen based on how the 11th Circuit—which has a majority of Trump-appointed judges—rules. The DOJ suggested Tuesday that it could ask the Supreme Court to take up its case if the 11th Circuit rules in Trump’s favor.

Surprising Fact

Even if the White House documents were declassified, it may not actually stop Trump from being indicted. The three federal statutes the DOJ thinks Trump may have violated all broadly concern the mishandling of government documents and national security information, but don’t distinguish between classified and non-classified documents, so Trump still may have acted unlawfully even if the documents were declassified.

Key Background

The Justice Department’s appeal to the 11th Circuit marks the latest twist in the special master case, after Trump asked a court to appoint a special master two weeks after the August 8 FBI searched his Mar-A-Lago estate. The search, part of the DOJ’s ongoing investigation into whether Trump taking White House documents back to Mar-A-Lago violated federal law, resulted in the DOJ seizing more than 11,000 White House materials from the former president’s Florida club, approximately 100 of which were labeled as classified—and some “top secret.” In a ruling widely criticized by legal experts, Cannon, a Trump appointee, ordered a special master to review all the documents to filter out materials that could be covered under either attorney-client or executive privilege, despite the DOJ’s protesting doing so would be unnecessary and hurt its investigation. The ruling also blocks the DOJ from using the documents in its criminal probe while the special master is going through them, prompting the DOJ to ask Cannon to walk back her order just as it applies to classified documents and let the agency hang on to them. Cannon denied that request, however, leading the government to ask the appeals court for relief. Cannon also named Dearie as the special master at that time, after the Trump team suggested him as a potential person to execute the review and the DOJ said it would have no problem with him being appointed.