One of Donald Trump’s nominees for a so-called special master to review documents seized during the FBI’s search of Mar-a-Lago last month has been accepted by the justice department.
It is unclear whether the judge handling the request, US district judge Aileen Cannon, will approve the Trump team’s selection, but the DoJ’s compromise could pave the way for the appointment of a neutral arbiter to review the material after the two sides initially suggested rival candidates.
On Monday night, attorneys for the Department of Justice filed documents indicating that they would be satisfied with one of the Trump team’s choices, Raymond Dearie, the former chief judge of the Federal Court for the Eastern District of New York, in addition to the two retired judges they had previously recommended. The Trump administration has publicly opposed both nominees for attorney general on this same Monday.
The move is just the latest twist in an a protracted and increasingly tangled fight over government documents the former president kept at his Florida resort. Several hours earlier, Trump’s attorneys had asked Cannon to reject the justice department’s request to reclaim access to some of the seized documents and reopen the criminal investigation into his unauthorized retention of them.
In its response, Trump’s legal team restated its demand that all of the seized materials be reviewed by a special master and urged the judge to uphold her earlier order prohibiting prosecutors from using the documents in a criminal investigation.
However, in the 21-page filing, Trump’s attorneys interpreted the Presidential Records Act in unusual ways and accused the justice department of criminalizing what they saw as a dispute between Trump and the National Archives over how documents should be handled.
The response from Trump’s legal team read, “the government wrongfully seeks to criminalize the possession by the 45th president of his own presidential and personal records in what is at its core a document storage dispute that has spiraled out of control.”
Trump’s reported handling of secret government files, some of which reportedly involve nuclear secrets, is at the heart of this protracted battle.
Many people, including Democrats, believe that the case should end with criminal charges against Trump because of his outrageous behavior regarding the documents. Trump and his supporters have downplayed the controversy, saying it is politically motivated or exaggerated.
Trump’s lawyers primarily argued that the justice department’s request to Cannon last week to regain access to about 100 classified documents should not be granted because Trump may have secretly declassified those documents.
Because documents marked classified could never be personal or presidential records, the Justice Department had argued in its request that prosecutors be allowed to resume working with the 100 documents because Trump lacked a “possessory interest” in the materials.
It also complained that the documents marked classified needed to be reviewed by the FBI, a division of the justice department, in the risk assessment being conducted by the Office of the Director of National Intelligence, which has been halted because officials were unsure about the scope of Cannon’s order.
About 11,000 documents and 48 empty folders marked classified were taken from Mar-a-Lago by the FBI. For instance, the FBI was supposed to conduct a risk assessment into the missing file folders, but Cannon’s order has stalled that review, the Department of Justice has said.
Nonetheless, Trump’s attorneys implied in the new filing that the special master should review the 100 documents for possible privilege protections before prosecutors or the FBI could view them, on the grounds that Trump may have declassified them.
As the case has progressed, it has become crucial to determine whether or not the classified documents seized from Mar-a-Lago were actually declassified, despite Trump’s lawyers having assured the government that the resort had complied with a subpoena demanding any documents marked classified.
Despite the fact that Trump’s lawyers have never stated this in court filings—which require statements to be entirely truthful—Trump and his allies have claimed for weeks that the classified documents stored at Mar-a-Lago were declassified subject to a “standing declassification order.”
As with previous court submissions, the latest filing from Trump’s legal team danced around the question of whether Trump actually declassified the materials without settling on one side or the other, and left unclear whether some of the seized materials had actually been designated personal records by Trump.
According to a former US attorney, Trump’s legal team essentially argued the same points that would be made in a motion to suppress evidence presented after a client has been indicted, rather than in a typical fourth amendment claim presented prior to indictment.
In the filing, the Trump team’s interpretation of the Presidential Records Act, upon which the entire legal argument rests, was particularly out of the ordinary. They claimed that the provision of the act stating that the National Archives “shall” become the custodian of presidential records did not mean that it “must.”