Former President Donald Trump argued in a court filing Wednesday that the National Archives should have expected to find classified material among the 15 boxes Trump turned over in January from Mar-a-Lago because they were presidential records.
The filing, his closing written legal argument before a critical hearing Thursday, acknowledged that classified material was found at Mar-a-Lago, but argued that it should not have been cause for alarm – and should not have led to the search of Trump’s Florida residence earlier this month.
Trump’s new filing on Wednesday is his platform to formally respond to prosecutors’ assertions that members of his legal team engaged in “obstructive conduct” by concealing documents at his Florida resort and by providing untrue information to investigators about how many classified documents remained on site.
Painting the probe as politically charged given Trump’s potential run as a candidate 2024, he scoffed at the idea that the DOJ could be “entrusted with the responsibility of evaluating its unjustified pursuit of criminalizing a former President’s possession of personal and Presidential records in a secure setting.”
The Justice Department had said in court filings that the search was undertaken after the FBI developed evidence that Trump’s team had concealed materials after claiming all classified materials had been turned over in June.
“The purported justification for the initiation of this criminal probe was the alleged discovery of sensitive information contained within the 15 boxes of Presidential records,” Trump’s lawyers wrote. “But this ‘discovery’ was to be fully anticipated given the very nature of Presidential records. Simply put, the notion that Presidential records would contain sensitive information should have never been cause for alarm.”
Trump’s lawyers argue that under the Presidential Records Act, the Archives should have followed up with a good faith effort to secure recovery of presidential records, rather than referring a criminal probe to the Justice Department.
In posts on his social media platform Truth Social on Wednesday, Trump claimed that he had declassified all of the documents in the photo.
“Terrible the way the FBI, during the Raid of Mar-a-Lago, threw documents haphazardly all over the floor (perhaps pretending it was me that did it!),” Trump wrote, “and then started taking pictures of them for the public to see. Thought they wanted them kept Secret? Lucky I Declassified!”
The photos, however, do not show top secret information but only the cover page for secret documents, nor is there evidence that the documents were in fact declassified.
There are also no references in the 19-page filing submitted Wednesday to declassification. In one passage, Trump’s lawyers write the Justice Department’s filing Tuesday included a photograph of “allegedly classified materials.”
The dueling court filings are in a civil lawsuit that Trump filed earlier this month, as part of his attempt to get a “special master” appointed to review documents that the FBI seized from Mar-a-Lago. Federal prosecutors oppose this request, claim it would impede the ongoing criminal investigation and the intelligence community’s review of any national security risks, and want the suit dismissed.
Should a special master be appointed, Trump’s filing argued “it would be appropriate for the special master to possess a Top Secret/SCI security clearance” – an implicit admission of the top-level classification markings on the documents.
The hearing is scheduled for Thursday at 1 p.m. ET.
Trump wants copies of documents seized and unredacted affidavit, lawyers say
Trump’s legal team said the government should provide both the special master and Trump himself with copies of the materials the FBI seized.
The former President is also seeking a copy of the search warrant and an unredacted copy of the materials used to obtain it – which would include the affidavit that was released last week in redacted form.
“The Government should provide to the special master and to Movant a copy of the Seized Materials, a copy of the Search Warrant, and an unredacted copy of the underlying application materials,” the filing said.
The Justice Department argued that releasing the unredacted affidavit would harm the federal investigation into the documents, which is ongoing, including revealing witnesses. One of Trump’s lawyers has suggested in television interviews that his team wanted to learn the identifies of witnesses in the probe.
The Justice Department has also previously pushed back against Trump’s allegation that prosecutors maliciously transformed a dispute over the toothless Presidential Records Act into a full-blown criminal investigation.
Prosecutors said Tuesday in a court filing that “this investigation is not simply about efforts to recover improperly retained Presidential records.” They referenced the search warrant, which a judge approved after finding probable cause of Espionage Act violations, criminal handling of government records, and obstruction of justice.
Further pushing back on Trump’s narrative, prosecutors pointed out that the federal law they cited about mishandling of government records specifically makes it a crime to conceal or remove “Presidential records.”
Hearing Thursday over special master and filter process
Trump filed the lawsuit early last week – 14 days after the search warrant was executed – claiming that his constitutional rights had been trampled in the search. He demanded that a special master be appointed to review the materials seized by the FBI from Mar-a-Lago. A special master is a third-party attorney who is appointed by courts in some situations – often those where attorneys’ offices have been searched – to review evidence obtained by the government and filter out privileged materials that should be kept out of the hands of investigators.
After Trump’s initial lawsuit was seen as lacking several key legal elements, the judge assigned to the case – Trump-appointee Judge Aileen Cannon – asked for his lawyers to supplement it with additional information last Friday. On Saturday, she said in an order she was inclined to appoint the special master, but first would consider court filings responding to the request and hear arguments on it on Thursday.
The Justice Department argued in the Tuesday filing that appointing a special master would be both “unnecessary” and a move that would impede the criminal probe as well as the risk assessment being undertaken by the intelligence community. Prosecutors argued that Trump failed to overcome the procedural thresholds required in making the ask.
The DOJ said Trump’s scenario – one mainly focused on questionable claims of executive privilege – was much different than the situations where special masters were typically appointed. In those cases, materials covered by attorney-client privilege is the main concern.
Prosecutors have previously told the court that “a limited set of materials” potentially covering attorney-client privilege were recovered in the search. The DOJ’s internal filter team has already finished its work of segregating those materials from what is shared with investigators, the department said Tuesday, and the rest of the documents have already been reviewed by the agents working on the case.
Trump attacked the internal filter process the DOJ conducted, which was approved by US Magistrate Bruce Reinhart when he signed off on the warrant in early August. That process, “provides the filter Privilege Review Team with virtually unchecked discretion in addressing potential privilege disputes,” Trump’s lawyers wrote.
He said the three ways the DOJ outlined that the filter team would deal with privileged materials was not “sufficient to protect Movant’s significant interests, and not surprisingly, as of this filing the Privilege Review Team has made no effort to contact Movant’s counsel regarding its decisionmaking or the results of the privilege review.”
The filing also set forward new detail in how the special master should operate — details that were missing from his initial motion last week and the follow-up submission that was filed last Friday at the judge’s request.
Trump’s filing cast himself as the reasonable actor in the events leading up to search, describing the months that his team put off the government’s efforts to obtain the record as a “standard give-and-take between former Presidents and (the National Archives and Records Administration) regarding Presidential library contents.”
A visit FBI officials paid Mar-a-Lago to retrieve documents had been demanded in a subpoena, were in Trump’s words, him “literally allowing DOJ lawyers and FBI investigators to come to his home and provide security advice.”
This story has been updated with additional details.