Former President Donald Trump admitted that he took reams of records from the White House to Mar-a-Lago but argued that the records were designated as personal records by him rather than remaining presidential records.
Trump’s attorneys contended that under the Presidential Records Act, “a President determines whether a document constitutes a Presidential record or a personal record” and that “when that decision is made, it is not subject to challenge.” Trump’s legal team contended that “there is no authority whatsoever for the notion that the Government can seize documents from a President, and simply declare that they are Presidential records.”
“President Trump was still serving his term in office when the documents at issue were packed, transported, and delivered to his residence in Palm Beach,” Trump’s lawyers argued. “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.”
Trump’s team made the arguments to Judge Raymond Dearie, the special master reviewing records seized by the FBI during its unprecedented raid of Trump’s Florida resort home in August.
Attorney General Merrick Garland said in August that he “personally approved the decision to seek a search warrant in this matter.”
The specter of criminal charges against Trump will reemerge as the midterm elections conclude and the former president seemingly moves toward a new presidential bid.
KEY FACTOR IN GARLAND DECISION ON WHETHER OR NOT TO CHARGE TRUMP REVEALED
An appeals court previously granted the Justice Department’s request for a partial stay of Judge Aileen Cannon’s lower court order, allowing the DOJ to continue its criminal investigation using allegedly classified documents the FBI seized. The three-judge panel’s decision was a win for the DOJ, with the appeals court also reversing Cannon’s determination that the DOJ would have to provide roughly 100 documents with classified markings to the special master for review.
Cannon had ruled that she “temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order.” The appeals court sided with the DOJ that Cannon had “likely erred” in her ruling pausing the DOJ’s criminal investigation and requiring prosecutors to allow Dearie to scrutinize the 100 documents with classified markings independently.
“The Presidential Records Act authorizes a sitting President to designate records as personal records during his term in office,” Trump’s lawyers argued to the special master. “The contents of the seized materials underscore the fact that President Trump treated these papers as personal records. The documents seized from Mar-a-Lago included [REDACTED]. However, the Special Master has not been tasked with assessing the correctness of President Trump’s designations. In other words, it is the President’s designation — not the appearance or content of a given document — that is determinative.”
Trump’s lawyers added: “President Trump need not put forth documentary evidence of his designation decisions, because his conduct unequivocally confirmed that he was treating the materials in question as personal records, rather than Presidential records.”
The Justice Department told the special master that Trump’s legal arguments were nonsense.
“Plaintiff may not designate records qualifying as ‘Presidential records’ under the Presidential Records Act as his ‘personal’ records simply by saying so,” the Justice Department told the court. “Plaintiff’s designation of certain categories of records as ‘personal’ records is inconsistent with the text of the PRA.”
The Justice Department added: “Seeming to recognize that a record cannot both be a ‘personal’ record and be shielded by executive privilege, Plaintiff has indicated in dozens of instances 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 Special Master should not indulge this type of gamesmanship. … That is a shell game.”
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The search warrant application cover sheet, unsealed in late August, provided more details on what the DOJ was looking for on Aug. 8 when they searched Trump’s Florida resort. The records showed Trump was being investigated under 18 U.S.C. 793, part of the Espionage Act, and said it was related to “willful retention of national defense information.” The record also pointed to 18 U.S.C. 2071, specifically the “concealment or removal” of government records, as well as 18 U.S.C. 1519, specifically related to “obstruction” of a federal investigation.
Whether or not the DOJ is considering charging Trump under those or other statutes is not known.
