Former U.S. President Donald Trump talks to the press on the grounds of his Mar-a-Lago resort on midterm elections night in Palm Beach, Florida, U.S. November 8, 2022.
Ricardo Arduengo | Reuters
But federal prosecutors say he cannot deem the records personal “simply by saying so.”
In a new court filing, the Department of Justice also accused Trump of “gamesmanship” by saying he will assert executive privilege over dozens of documents if a court-appointed watchdog rejects his claim that they are “personal” in nature.
The war over what Trump’s purported words mean is playing out in a federal court in Florida, where the former president’s lawyers and attorneys for the DOJ briefed a judge last week on the status of issues related to the records seized in early August from Trump’s Mar-a-Lago club in Palm Beach. The legal briefs were unsealed Monday.
The DOJ is criminally investigating Trump for the removal of government records from the White House, and possible obstruction of justice related to the lag in getting those documents back from him. More than a hundred documents were marked classified.
Government records are by law the property of the government and must be transferred to the National Archives and Records Administration when a president leaves office.
A court-appointed watchdog, known as a special master, is reviewing the records to determine which should be barred from being examined by the DOJ as part of its probe due to possible privileges. Those include the documents being personal or subject to executive privilege.
In their filing last week, Trump’s lawyers wrote, “The Presidential Records Act authorizes a sitting President to designate records as personal records during his term in office.”
“The questions now before the Special Master is therefore whether a President has the authority to decide whether a document is a ‘Presidential record’ or a ‘personal record,'” the lawyers wrote.
“Both the plain language of the PRA and past court decisions answer this question in the affirmative,” they added.
Trump’s attorneys went on to say that he was still serving as president when the documents were packed, transported and delivered to Mar-a-Lago.
“Thus, when he made a designation decision, he was President of the United States; his decision to retain certain records as personal is entitled to deference, and the records in question are thus presumptively personal,” the lawyers wrote.
A detailed property inventory of documents and other items seized from former U.S. President Donald Trump’s Mar-a-Lago estate is seen after the document was released to the public by the U.S. District Court for the Southern District of Florida in West Palm Beach, Florida, September 2, 2022.
Jim Bourg | Reuters
The attorneys also argued that the special master has not been tasked with assessing “the correctness” of Trump’s designation of the records.
“It is the President’s designation, not the appearance or content of a given document — that is determinative,” they wrote.
DOJ lawyers scoffed at those arguments in their own brief.
Trump “may not designate records qualifying as ‘Presidential records’ under the Presidential Records Act … as his ‘personal records’ simply by saying so,” the DOJ attorneys wrote.
The lawyers added that neither that law nor judicial precedent gives Trump “the ability to ignore the statute by removing Presidential records from the White House, retaining them (without authorization) in a personal storage space, and then ‘deem[ing]’ them to be ‘personal.'”
The DOJ also argued that if Trump “categorizes a document as a personal record, then he cannot assert executive privilege over that document.”
The lawyers wrote that personal records are ones of a private character which do not relate to or have an effect on a president performing their duties, while executive privilege “protects Presidential communications related to the performance of official duties.”
Trump apparently recognizes that a “document cannot be both a personal record and one protected by executive privilege,” and has identified dozens of records “that he asserts executive privilege only if the Special Master rejects his assertion that a document is a ‘personal’ record and determines that it is a Presidential record,” the DOJ attorneys wrote.
“The Special Master should not indulge this type of gamesmanship,” the lawyers wrote.
The DOJ attorneys went on to say that Trump cannot assert executive privilege to withhold the seized documents from investigators.
Either way, they noted, he has asserted executive privilege over just 121 documents of the more than 2,900 seized, the lawyers said.
Because of that, “there is no basis to continue restricting the government’s review and use for criminal investigative purposes of the remaining 2,794 documents,” the attorneys wrote. “The Special Master should therefore recommend that the Court’s injunction as to those remaining documents [which bars DOJ from reviewing them for now] … be lifted.”