Trump and DOJ Close Agreement on Records Expert

On Monday, former president Donald Trump and the Justice Department came close to agreeing on the identity of an outside expert to oversee the review of records seized by the FBI last month from his Mar-a-Lago estate as part of a criminal investigation into the alleged unauthorized retention of national security secrets.

In a court document, prosecutors indicated that they had no objections to one of the special master candidates suggested by Trump’s legal team. Raymond Dearie, a judge in New York’s federal district court, was appointed by President Reagan.

Trump and Doj Close Agreement on Records Expert
Trump and Doj Close Agreement on Records Expert

Based on the Justice Department’s position, the judge presiding over litigation Trump filed in response to the August 8 search of his Florida mansion should have no trouble appointing Dearie. Aileen Cannon, but the judge has some leeway in the matter.

While the master’s identity is likely to be revealed shortly, Trump and prosecutors continue to disagree on many other parts of the review, most notably whether it should include the roughly one hundred sensitive documents obtained by FBI agents during the raid.

Trump’s attorneys asked Cannon in a filing made on Monday morning to uphold a ruling that had prevented the Justice Department from further criminal investigation into the highly sensitive government records stashed in the basement and in Trump’s office at his Florida home, which also serves as a private club.

In the filing, she is encouraged to stick to her unorthodox directive that has prevented FBI investigators from accessing the information collected in their August 8 search, despite prosecutors’ warnings that doing so could compromise national security.

Attorneys for Trump claimed in a 21-page filing that the government is wrongly trying to criminalize the 45th president’s holding of his own Presidential and personal records in what is essentially a document storage issue that has gotten out of hand.

Last week, Trump applauded Cannon publicly, calling her initial ruling “courageous,” and lashing out at the Justice Department for appealing her order. The government has formally requested a temporary stay from Cannon on the part of her order that prevents the FBI from accessing roughly 100 classified data, some of which are among the most sensitive in the government’s possession.

However, in his response, Trump sidestepped the subject of whether he had declassified any of the data before leaving office, as he has previously asserted, by pointing out that the Justice Department has not confirmed their “classification status.”

Christopher Kise, an attorney representing Trump, and other lawyers for the ex-president said, “[T]he Government has not shown these records remain confidential.” That question “will be answered at a later date.”

According to the petition, Trump has also claimed ownership of some of the documents by designating them as his “personal” property, a broad classification power provided to sitting presidents for the purpose of separating data with little value to the government.
However, Trump’s legal team makes no claim that their client performed this action, and their petition provides no affidavit or other proof from Trump to support the claim that he did so.

Kise noted that any debate over whether or not the confiscated records should be considered presidential or personal must be settled under the Presidential Records Act and cannot be used as evidence in a criminal case.

Trump’s legal team relies significantly on a decision from the U.S. Formerly mocked by Trump for her ruling in the criminal trial of Roger Stone, District Court Judge Amy Berman Jackson. Jackson, an Obama appointment, threw out a lawsuit that would have required the National Archives to take ownership of audio recordings of interviews with former president Bill Clinton that Clinton had kept.

Despite the fact that the 1978 law requires such personal records to be those without ongoing decision-making value for the executive branch, Jackson ruled that presidents have broad discretion to designate records like the audiotapes as “personal,” with little, if any, recourse for the government or the public over those decisions.

Jackson’s finding is not binding precedent, but she did find that by failing to turn over the tapes to the archives after Clinton’s second term ended in 2001, he had effectively labeled them as personal.

The Justice Department claims that some of the relevant records were marked as highly classified, suggesting their intrinsic relevance to the present government, which sets Trump’s case apart from Clinton’s.

Trump’s brief includes the bold claim that even classified records could be considered his personal property under the Presidential Records Act.

Whether classified or declassified, the materials are still considered Presidential records or personal information under the PRA, Trump’s legal team stated.

Trump’s attorneys even claim, in one section, that the president was within his rights to label certain data as private after he left office.

They write, quoting from Jackson’s ruling, “The former President has sole authority to define a record as personal or Presidential.” This determination must be made while a president is in office.

Trump has claimed that he has a “absolute right” to access the data, including keeping them at his private residence, because they were made during his tenure. The government has maintained that the materials are properly part of the National Archives and hence under the control of the current executive branch.

In May, prosecutors issued a grand jury subpoena for any classified documents in Trump’s possession. On June 3rd, they met with Trump at Mar-a-Lago and attempted to acquire the documents from a storage room in the building’s basement. The investigators found cause for concern when they learned that documents marked as highly sensitive had been stored at the unsecured facility. Such documents are normally kept under stringent security safeguards.

The Justice Department is investigating whether Trump or his allies attempted to hide some of the sensitive records subpoenaed by the government, which would constitute a violation of the Espionage Act for the willful retention of classified documents, theft or concealment of government records, and obstruction of justice.

Trump’s filing suggests that his legal team believes the Justice Department should have considered filing a civil suit to recover the information before opening a criminal probe. They further state that Cannon’s directive did not compromise national security because it allowed the intelligence community to continue with its review.

According to Kise, “the pursuit of all other available civil mechanisms would, respectfully, have been a better exercise of prudential judgment given the circumstances involve the possession by a former President of his own Presidential records at a location which had long been utilized to conduct the business of the United States.”

Importantly, two footnotes in Trump’s legal brief make reference to the possibility that Trump’s case would be tried before a jury. In their opinion, “neither leaks nor the prospect of a public jury trial appear to raise any concerns regarding irreparable injury,” and the Justice Department “would probably be prepared to reveal all such records publicly in any future jury trial.”

As part of the judge’s order, Trump’s legal team informed Cannon on Monday afternoon that they disagree with either of the two options presented by the Justice Department to oversee an independent assessment of the evidence confiscated from Cannon’s estate.

Trump’s lawyers have given Cannon “specific reasons” to reject the two candidates proposed by the department: Barbara Jones, a former federal judge who has handled sensitive “special master” duties in three recent politically explosive cases, and Thomas Griffith, a former federal appeals court judge who retired in 2020. Trump’s legal team urged the court to exclude them from providing information in a public filing, saying that they were ready to discuss the matter in private with the judge.

In its Monday filings, the Department of Justice said that either Jones, Griffith, or Dearie would be qualified for the position. Prosecutors raised a possible red flag, however, when they mentioned that Dearie is not actually retired from government work but is instead classified as “senior active.”

It’s not clear if it will impact his chances of being chosen, but prosecutors claim Dearie suggested he “could complete the assignment promptly.”

Trump suggested Paul Huck Jr., a lawyer in Florida who counseled the former governor of the state, Charlie Crist, alongside Kise, as a possible special master in addition to Dearie. The Justice Department made it clear that Huck did not meet their qualifications for the position due to his lack of judicial experience.