‘Entirely new category’: Trump makes striking combo claim over two Mar-a-Lago documents

For items listed as No. 15 and 16, the filing in Florida says both sides agree each document has personal records, but the government disagrees with the Trump team’s assertion that they are also covered by executive privilege.

“Plaintiff claims that documents 15 and 16 record communications between the President and his advisors and for those documents appears to invoke the Presidential communications component of Executive Privilege,” the filing says. The government lists four reasons why it disagrees with this assertion, including that the plaintiff “cannot logically assert Executive Privilege over two of the documents — 15 and 16 — because the parties agree that those documents are personal and not Presidential records. Only official records are subject to assertions of Executive Privilege.”

The special master, Judge Raymond Dearie, has already signaled skepticism about such dual claims in the dispute over the documents taken from Trump’s Mar-a-Lago resort in Florida by the FBI in August. “Unless I’m wrong, and I’ve been wrong before, there’s certainly an incongruity there,” Dearie said this week.

In the same phone conference, focused on a small subset of records the DOJ’s filter team has already set aside, Dearie pressed Trump’s legal team to provide more information to support claims of privilege to shield certain documents from the Justice Department’s investigation of Trump’s handling of documents. “It’s a little perplexing as I go through the log,” Dearie said during the call, the New York Times reported. “What’s the expression — ‘Where’s the beef?’ I need some beef.”

Trump’s lawyers claim nine documents are personal records, while the Justice Department insists they are presidential records, per the new court filing. Among these records that Trump claims are personal property were clemency requests. “Those requests were received by plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity,” the government said in the filing.

But it was the Trump team’s dual assertions about two other documents that drew blowback from the Justice Department and inspired skeptical critiques on Twitter.

“Personal records that are not government property are seized every day for use in criminal investigations,” the government said in a footnote. “And the fact that more than 100 documents bearing classification markings were commingled with unclassified and even personal records is important evidence in the government’s investigation in this case.”

Hugo Lowell, a reporter for the Guardian who has been covering investigations into Trump, tweeted, “Trump appears to have created an entirely new category of record: a doc that is simultaneously personal (non-govt) and executive privileged (govt).”

“So Trump’s counsel are claiming communications about clemency petitions to the President of the United States are personal records for Trump to keep? That seems like a poor strategy for convincing Judge Dearie,” tweeted Ryan Goodman, founding co-editor-in-chief of Just Security and former special counsel to the general counsel of the Department of Defense. He added later that he surmised it was a “metaphysical impossibility.”

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The government is investigating possible violations of the Espionage Act and obstruction of justice, per court documents. Trump has adamantly denied wrongdoing. The former president has argued that he declassified the documents in Mar-a-Lago and surmised that a president can declassify material “even by thinking about it.”

Dearie’s review remains ongoing while the legal challenges against the special master appointment play out in court.