Trump and DOJ near agreement on expert for review of seized records

Former President Donald Trump and the Justice Department neared agreement on Monday on the identity of an outside expert to oversee a review of records seized by the FBI last month from his Mar-a-Lago estate as part of a criminal investigation into alleged unauthorized retention of national security secrets.

Prosecutors said in a court filing that they did not object to one of the special master candidates proposed by Trump’s legal team, U.S. District Court Judge Raymond Dearie, a New York-based appointee of President Ronald Reagan.

The Justice Department’s stance appears to clear the way for Dearie’s appointment by the judge overseeing litigation that Trump brought over the Aug. 8 search of his Florida home, U.S. District Court Judge Aileen Cannon, although she still has discretion over whom to select.

While the identity of the master could soon be resolved, Trump and prosecutors remain at odds over numerous other aspects of the review, most significantly whether it should cover about 100 documents marked as classified that FBI agents recovered during the raid.

In a filing on Monday morning, Trump’s lawyers urged Cannon to keep in place a ruling that blocked the Justice Department from continuing its criminal investigation into the highly sensitive government records stashed in the basement and in his office at his Florida home, which also serves as a private club.

The submission, a response to prosecutors’ warning that the Trump appointee’s unorthodox directive — preventing FBI investigators from accessing the files seized in their Aug. 8 search — was harming national security, urges her to stay the course.

“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,” Trump’s attorneys wrote in a 21-page filing.

Trump directly praised Cannon last week, calling her initial ruling “courageous” and lashing out at the Justice Department for moving to appeal her order. The department has asked Cannon to temporarily set aside the portion of her order that blocked FBI access to about 100 records marked as classified — including some bearing labels denoting the most sensitive records the government possesses.

Trump’s response danced around the question of whether Trump declassified any of the records before leaving office — as he has publicly claimed — and instead notes that the Justice Department has not proven their “classification status.”

“[T]he Government has not proven these records remain classified,” Trump attorney Christopher Kise and other lawyers for the former president wrote. “That issue is to be determined later.”

The filing also notes that Trump designated some of the records as his “personal” property, a broad designation power accorded to sitting presidents, meant to segregate records that have no value to the government.

But again, Trump’s lawyers don’t assert that he actually took this step, and their filing includes no evidence or affidavit from Trump suggesting he took these actions.

“To the extent President Trump may have categorized certain of the seized materials as personal during his presidency, any disagreement as to that categorization is to be resolved under the [Presidential Records Act] and cannot possibly form the basis for any criminal prosecution,” Kise wrote.

Trump’s attorneys lean heavily on a 2012 ruling by U.S. District Court Judge Amy Berman Jackson — once derided by Trump for her handling of the criminal trial of Roger Stone. Jackson, an appointee of President Barack Obama, dismissed a lawsuit trying to force the National Archives to claim ownership of audio recordings retained by former President Bill Clinton of interviews he did with journalist Taylor Branch.

Jackson ruled that presidents have broad discretion to designate records such as the audiotapes as “personal,” with little, if any, recourse for the government or the public over those decisions, even though the 1978 law requires such personal records to be those without ongoing decision-making value for the executive branch.

While Jackson’s ruling isn’t binding precedent, she concluded that Clinton had effectively designated the tapes as personal by not turning them over to the archives when his second term ended in 2001.

The Justice Department argues that Trump’s situation is distinguishable from Clinton’s in part because some of the documents in question were marked as highly classified material, inherently indicating that they are of immense value to the current government.

Among the more aggressive arguments in Trump’s brief is a suggestion that he could deem records personal under the Presidential Records Act, even if they were classified.

“Classified or declassified, the documents remain either Presidential records or personal records under the PRA,” Trump’s legal team wrote.

In one passage, Trump’s lawyers even argue that he had the right to designate records as personal after he left office.

“The former President has sole discretion to classify a record as personal or Presidential,” they write, citing a portion of Jackson’s decision that actually says that designation must be made while a president is in office.

Trump has argued that because the records were created during his tenure, he has an “absolute right” to access them, including by maintaining them at his private residence. The government has contended that regardless of their status, the documents belong to the National Archives and under the control of the current executive branch.

Prosecutors issued a grand jury subpoena in May for all records marked classified in Trump’s possession in May and tried to retrieve them during a June 3 meeting at Mar-a-Lago, where they visited a storage area in the basement of the Florida residence. The investigators became alarmed about the presence of records containing highly classified markings that were warehoused in the unsecured facility, rather than in accordance with the strict security measures that typically accompany the storage of national security documents.

The Justice Department is probing Trump’s handling of those records for potential violations of the Espionage Act for the willful retention of classified documents, theft or concealment of government records and obstruction of justice, citing evidence that Trump or his allies worked to conceal some of the sensitive records subpoenaed by the government.

In their filing, Trump’s attorneys contend that the Justice Department should have considered mounting a civil lawsuit to recover the records before initiating a criminal investigation. They also argue that Cannon’s order, which permitted the continuation of a national security review by the intelligence community, was not a hindrance to national security.

“Given the circumstances involve the possession by a former President of his own Presidential records at a location which had long been utilized to conduct the business of the United States, the pursuit of all other available civil mechanisms would, respectfully, have been a better exercise of prudential judgment,” Kise wrote.

Notably, Trump’s lawyers appear to be contemplating a potential jury trial for Trump, referencing the prospect in two footnotes. The Justice Department “would presumably be prepared to share all such records publicly in any future jury trial,” they write, adding that “neither leaks nor the prospect of a public jury trial appear to raise any concerns regarding irreparable harm.”

Trump’s team also notified Cannon on Monday afternoon that they object to the Justice Department’s two options to oversee an independent review of the material seized from his estate, a key part of the judge’s order.

Trump’s attorneys said they had “specific reasons” for urging Cannon to reject the two individuals the department proposed: Barbara Jones, a former federal judge who has handled sensitive “special master” duties in three recent politically explosive cases, and Thomas Griffith, a former federal appeals court judge who retired in 2020. Trump’s lawyers asked that they not be required to elaborate on those grounds in a public filing and said Trump’s team was prepared to share the specifics with the judge privately.

The Justice Department said in its Monday filings that Jones, Griffith or Dearie would be well-suited for the job. However, prosecutors did flag one potential concern, noting that Dearie isn’t fully retired from government service but is officially in “senior active” status.

It’s unclear whether that would complicate his selection, but prosecutors said Dearie indicated he “could perform the work expeditiously.”

In addition to Dearie, Trump proposed as a potential special master Paul Huck Jr., a Florida-based attorney who advised Charlie Crist, the state’s former governor, at the same time as Kise. The Justice Department indicated that it considered Huck ill-suited for the role because he lacks service as a judge.