By Zachary Stieber
U.S. officials have not proven that former President Donald Trump held classified records, lawyers for the ex-president said in a new filing on Sept. 20.
The government “presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable. However, the Government has not yet proven this critical fact,” the lawyers wrote to the U.S. Circuit Court of Appeals for the 11th Circuit.
They pointed to an executive order from former President Barack Obama, which remained in place through the Trump presidency and gives the president authority to declassify any document, and said Trump had the absolute authority to declassify any records.
Materials marked classified were found at Trump’s Mar-a-Lago home by FBI agents executing a search warrant in August, and the government has repeatedly described them as classified records.
“The district court has entered an unprecedented order enjoining the Executive Branch’s use of its own highly classified records in a criminal investigation with direct implications for national security,” U.S. lawyers said in a recent motion to the Circuit Court.
Request for Partial Stay
The lawyers were asking for a partial stay of an order entered by U.S. District Judge Aileen Cannon, a Trump appointee who appointed a special master to review the seized records and ordered the government to halt using the seized records for anything apart from a national security review.
The Department of Justice asked the court to allow it to continue using the records for a criminal investigation into Trump.
Its argument in part hinged on whether Trump has standing to claim legitimate access to materials marked classified. U.S. lawyers said he did not “because those records are government property, over which the Executive Branch has exclusive control and in which Plaintiff has no property interest.” Executive privilege claims cannot work because Trump is no longer president, they added.
“Even if a former President could assert executive privilege against the Executive Branch’s review and use of its own documents, any such assertion would inevitably fail as to the records bearing classification markings,” they also said.
They also argued that letting the special master and Trump’s lawyers review the records marked classified “would impose irreparable harm on the government and public” and should not be allowed.
The government’s arguments assume, without presenting proof, that the documents marked classified are classified, Trump’s lawyers said in the new filing, which was lodged in response to the government motion.
They said that all government records, regardless of classification, fall under the Presidential Records Act or the Federal Records Act. Each record falls under one or the other; none fall under both.
Under the presidential act, Trump has an interest in and ability to access records from when he was president, according to the new filing.
“To the extent certain of the seized materials constitute Presidential records, a former President has an unfettered right of access to his Presidential records even though he may not ‘own’ them,” Trump lawyers said, citing an exception to access that states “the Presidential records of a former President shall be available to such former President or the former President’s designated representative.”
Trump’s position is that judges and others cannot make determinations on the documents without a “thoughtful, organized review” by the special master—and lawyers for the former president said the government should not be permitted to keep using the documents for its criminal probe because they “may very well be off limits.”
The new filing came shortly before the first hearing was scheduled involving the special master, U.S. District Judge Raymond Dearie, a Reagan appointee, to go over details of Dearie’s potential review of the seized materials.
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