The Justice Department has emphasized to an appeals court that Donald Trump has yet to provide evidence he had declassified the records seized from Mar-a-Lago, just as the special master himself appeared highly skeptical of the former president’s claims.
Trump and some allies have argued in public that the former president declassified the documents that were at his Florida resort home when it was raided by the FBI, but the DOJ has repeatedly pointed out that declassification claims have not made it into Trump’s legal filings.
“[Trump] scarcely even attempts to explain how such records could be subject to a valid claim of executive privilege, attorney-client privilege, or return of property,” the Justice Department said in a legal filing to the U.S. Court of Appeals for the 11th Circuit just before midnight on Tuesday. “[Trump] again implies that he could have declassified the records before leaving office. As before, however, [Trump] conspicuously fails to represent, much less show, that he actually took that step.”
The Justice Department is opposed to a federal district court ordering it to pause its investigation related to the seized records while a special master reviews them.
Raymond Dearie, who was picked to be the special master last week after he was put forward by Trump, suggested to Trump’s lawyers during a Tuesday hearing that the former president must provide evidence of declassification or else the judge may have to assume the records seized by the FBI are indeed classified.
TRUMP’S LAWYERS ADMIT HE MIGHT GET CHARGED
Trump’s attorneys told Dearie they are reluctant about making public the specifics on what Trump may have declassified because that issue might end up being key to one of their defense strategies against a possible future indictment.
“How am I going to verify the classification? … What am I looking for? … What business is it of the court?” Dearie asked during the Tuesday hearing. The judge suggested DOJ had given “prima facie evidence” that the records were classified and said that “as far as I’m concerned, that’s the end of it.”
Trump’s lawyers attempted to push back in court.
“It’s not about gamesmanship. It’s about not having seen the documents. … We are not in a position — nor should we be in a position at this juncture — to fully disclose a substantive defense,” Trump lawyer Jim Trusty said. “We shouldn’t have to be in a position to have to disclose declarations and witness statements.”
Dearie replied: “My view of it is: You can’t have your cake and eat it.”
The DOJ followed up Dearie’s comments Tuesday night, telling the appeals court: “[Trump] is now resisting the special master’s proposal that he identify any records he claims to have declassified and substantiate those claims with evidence.”
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
“In any event, [Trump’s] effort to raise questions about classification status is a red herring. As the government has explained, even if [Trump] could show that he declassified the records at issue, there would still be no justification for restricting the government’s use of evidence at the center of an ongoing criminal investigation.”
