Lawyers for former President Donald Trump on Monday urged a federal judge to reject the Justice Department’s attempt to continue to review classified documents seized from Mar-a-Lago as part of its criminal investigation, saying that the materials may not be classified and that his Florida resort is secure.
Trump argues that he has broad authority as President to declassify records, and that a former President should have “absolute right of access” to presidential records – whether they are classified or not.
The filing is the latest attempt from Trump to muddy the perception of the investigation into the mishandling of national security documents after he left the presidency. The DOJ has continued to emphasize the stakes of their findings so far, calling for the need for a swift and private intelligence community review and flagging risks to national security.
Trump’s team continues to characterize the situation as a spat over presidential records.
“In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records,” Trump’s legal team writes.
Trump’s filing called Mar-a-Lago a “a secure, controlled access compound utilized regularly to conduct the official business of the United States during the Trump Presidency, which to this day is monitored by the United States Secret Service,” and that the documents were kept in a locked room.
“The Government generally points to the alleged urgent need to conduct a risk assessment of possible unauthorized disclosure of purported ‘classified records.’ But there is no indication any purported ‘classified records’ were disclosed to anyone,” Trump’s filing states.
According to court documents, investigators previously asked Trump in June to secure any classified documents in a locked room at Mar-a-Lago.
When FBI agents arrived in August, they seized 11 sets of classified documents from Mar-a-Lago, including some marked as “top secret/SCI” – one of the highest levels of classification, according to court documents. Prosecutors have also said that dozens of empty folders marked with “classified banners” were found in the search.
The “likelihood that improperly stored classified information may have been accessed by others and compromised” is a “core aspect of the FBI’s criminal investigation,” prosecutors have said.
The Justice Department has said in court that it treats documents marked as classified as such, until they can be fully reviewed. But Trump’s team uses the fact that documents haven’t been fully reviewed yet to argue that he and a special master should be able to access the records marked as classified.
“There still remains a disagreement as to the classification status of the documents. The Government’s position therefore assumes a fact not yet established,” Trump’s team wrote.
The Justice Department submitted its request for a stay last week.
US District Judge Aileen Cannon, when she ordered a special master be brought in to review documents obtained during the search, halted any use of the seized materials for the DOJ’s criminal investigation. She said, however, that the intelligence community’s assessment could continue. The Justice Department argues the criminal probe could not be decoupled from the intelligence community’s review, and that the intelligence review has been paused.
The DOJ has also said it will appeal to a higher court if Cannon doesn’t allow the intelligence work in the probe on the classified records to continue.
A special master has not yet been appointed, but Trump’s team makes clear Monday they believe that third-party appointee could work with them in a review of seized classified records. “President Trump (and, by extension, a requested special master) cannot be denied access to those documents,” his lawyers wrote Monday.
Trump’s team also wrote that a “President enjoys absolute authority under the Executive Order to declassify any information. There is no legitimate contention that the Chief Executive’s declassification of documents requires approval of bureaucratic components of the executive branch. Yet, the Government apparently contends that President Trump, who had full authority to declassify documents, ‘willfully’ retained classified information in violation of the law. Moreover, the Government seeks to preclude any opportunity for consideration of this issue.”
This story has been updated with additional details.