But the filing signals that amid the significant disagreements about how and what the special master should review, the two sides at least have found an area of agreement on who should do the reviewing.
The government court filing came hours after lawyers for Trump filed court papers Monday arguing against any pause in Cannon’s order for a special master to review the documents to see if any should be shielded from prosecutors because of attorney-client or executive privilege.
In their filing, the Trump legal team suggested that some of the seized documents that were marked classified may not be, and that the former president may have the right to keep the materials in his possession.
“In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records,” the Trump lawyers wrote, arguing that prosecutors are trying to limit any outside review of “what it deems are ‘classified records.’ ”
Their filing was in response to the Justice Department’s request for Cannon to temporarily suspend parts of her Labor Day order, in which she agreed to appoint a special master to review thousands of documents seized by the FBI in a court-approved search of Trump’s club and residence on Aug. 8.
Federal prosecutors asked Cannon to withhold her ruling that the FBI not use the more than 100 classified documents seized in the search until they are reviewed by the special master, essentially an outside legal expert. The government also asked Cannon to exempt the classified documents from outside examination, saying that requiring such a review would unnecessarily complicate the national security issues in the high-profile case.
In their filing, Trump lawyers disagree, charging that prosecutors are overstating the national-security concerns and that “there is no indication any purported ‘classified records’ were disclosed to anyone.” The filing was submitted by four members of Trump’s legal team: Christopher Kise, Lindsey Halligan, Evan Corcoran and James Trusty.
Trump’s lawyers argued that the government “has not proven” that the materials marked classified are actually still classified. A section of their 21-page filing outlines a president’s power to declassify documents, but does not say Trump actually declassified the material before he left office. The filing also says there is no indication that the “purported ‘classified records’ were disclosed to anyone.”
Steven Aftergood, a security specialist at the Federation of American Scientists, said the Trump team’s legal arguments do not accurately reflect how the government protects presidential records and sensitive national security information.
“A lot of the arguments advanced in the latest pleading are either based on a misunderstanding or aimed to confuse the issues,” said Aftergood, who from 1991 to 2021 directed the FAS Project on Government Secrecy, which tried to reduce the scope of national security secrecy and promote public access to government information. “These arguments are about things that the former president wishes are true, but are not. An impartial judge will not have difficulty dismissing most of these arguments.”
The Washington Post has reported that among the documents seized by the FBI was one describing a foreign government’s military defenses, including its nuclear capabilities, according to people familiar with the situation who spoke on the condition of anonymity to discuss it. Those people also said some of the seized documents detail top-secret U.S. operations that are so closely guarded that many senior national security officials are kept in the dark about them.
The Justice Department has said in court filings that among the 100-plus classified documents taken in August, some were marked “HCS,” a category of highly classified government information that refers to “HUMINT Control Systems,” which are systems used to protect intelligence gathered from secret human sources. There were also dozens of empty folders marked classified, according to a government inventory filed in court, and documents marked confidential, secret and top-secret.
“The Government contends that President Trump can have no such interest in the purported ‘classified records,’ ” the filing by Trump’s legal team reads. “But, again, the Government has not proven these records remain classified. That issue is to be determined later.”
The former president’s lawyers also said investigation of the documents should be centered around the Presidential Records Act — a civil law that says presidential records belong to the government, not the individual president. Trump’s attorneys wrote in the filing that their interpretation of parts of the act suggest that Trump has “an absolute right to access” his presidential records. They did not address criminal statutes — including a part of the Espionage Act — that the government alleges may have been violated by keeping or hiding classified documents at Mar-a-Lago.
As a former president, Trump has no say in what information is classified and what is declassified, Aftergood said. Nor do former presidents have a say in what materials are considered their personal property rather than government property. A new administration, in theory, could reclassify information that a previous president declassified.
Aftergood also said that if the exposure of a document threatens national security, there are other laws that protect these materials from being possessed by civilians, even if they are declassified. For example, the section of the Espionage Act that says it is illegal to remove documents or records related to national security from their proper place if doing so could risk the security of the country does not reference classified or unclassified documents.
Trump’s lawyers suggest in their filing that recent coverage of the documents case shows the government is being selective and unfair when it raises concerns about national security, citing The Post’s reporting that materials involving a foreign country’s nuclear capabilities were among the documents seized.
“The Government is apparently not concerned with unauthorized leaks regarding the contents of the purported ‘classified records,’ ” the filing reads.
In a second filing Monday afternoon, Trump’s lawyers said they oppose the Justice Department’s two special master candidates, retired judge Barbara S. Jones, who acted as a special master in an investigation of Trump’s former lawyer Rudy Giuliani; and Thomas B. Griffith, a retired appeals judge for the District of Columbia Circuit.
They did not explain their opposition in detail, only saying that “there are specific reasons” why they do not want those nominees. The lawyers said it would be “more respectful” to explain their objection to these candidates in a different venue, rather than in a public court filing.
The legal battle is the culmination of a fight over records taken to Mar-a-Lago that began almost as soon as Trump left office in early 2021. The National Archives and Records Administration and the Justice Department tried for months to get Trump to return all White House and presidential documents still in his possession, according to court filings in the case.
In May, the government subpoenaed Trump, asking for all the classified documents he still had. His lawyers told the government in response to the subpoena that everything had been returned.
But the FBI search last month yielded an additional 27 boxes containing a mix of personal items and classified and unclassified government material.
