Out of court, Trump has pushed the claim he declassified all the documents, and his lawyers have raised that possibility in court papers, though they have never explicitly argued that anything was declassified.
Federal prosecutors have argued for weeks that documents seized from Mar-a-Lago that contain classification markings — like “top secret” — should be treated as if they are classified.
During a hearing Tuesday, Dearie essentially called Trump’s bluff by pointing out that Trump’s lawyers haven’t yet provided any proof of declassification.
“If the government gives me prima facia evidence that they are classified documents, and you don’t advance any claim of declassification, I’m left with a prima facia case of classified documents, and as far as I’m concerned, that’s the end of it,” Dearie said.
Trump’s lawyer Jim Trusty said they are not in a position to fully disclose their defense or specifically address the declassification issue until they see the documents.
Trump is before the special master after successfully suing to obtain the review.
His team had put forward Dearie as a potential candidate for the job, and he was not opposed by the Justice Department.
Since Dearie stepped into the role, however, the Trump team has signaled some objections to how he had planned to approach the review.
On Monday, Trump’s lawyers signaled in a letter to Dearie their resistance to making certain disclosures about any moves to declassify the documents in question. The letter also suggested pushing back some of the interim deadlines Dearie had proposed.
Dearie is tasked with reviewing the 11,000 documents FBI seized in its search of Mar-a-Lago last month.
US District Judge Aileen Cannon, who granted Trump’s request for the special master, also blocked the Justice Department from using the seized materials in its criminal investigation while the special master does his work. The Justice Department is currently asking an appeals court to partially pause Cannon’s order as it pertains to the approximately 100 documents marked as classified that the FBI obtained in the search.