What comes next in Mar-a-Lago doc legal process?
Former U.S. attorney Jay Town provides analysis on 'Fox Report' as the DOJ, Trump team submit special master candidates.
Former President Trump’s legal team opposed the Justice Department’s motion to continue its review of classified documents seized by the FBI during its raid of Mar-a-Lago last month, slamming the entire investigation as "unprecedented and misguided," and one that has "spiraled out of control," while stressing that the government has not yet proven that the records "remain classified."
In a filing Monday morning, Trump’s legal team said the Justice Department is seeking to "limit the scope of any review of its investigative conduct and presuppose the outcome, at least in regard to what it deems are ‘classified records.’"
The Justice Department last week informed the court that it would appeal the ruling from U.S. District Judge Aileen M. Cannon for the appointment of a special master and would move for a "partial stay" pending its appeal—specifically regarding her order blocking the government from its review of the records seized that were marked classified.
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"This investigation of the 45th President of the United States is both unprecedented and misguided," Trump’s lawyers said in the filing. "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 legal team added that the court’s order "is a sensible preliminary step towards restoring order from chaos."
"The Government should therefore not be permitted to skip the process and proceed straight to a preordained conclusion," they wrote.
Former President Donald Trump in New York City following the FBI raid at his Mar-a-Lago home. (Felipe Ramales / Fox News Digital)
In the judge’s initial order for the appointment of a special master, Cannon ruled that the special master would be responsible to review the seized property for "personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege."
Cannon, though, said the order "shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence ("ODNI") as described in the Government’s Notice of Receipt of Preliminary Order."
Trump’s legal team argued that the Justice Department has "misinterpreted" the order, and said there is "no indication any purported ‘classified records’ were disclosed to anyone."
"Indeed, it appears such ‘classified records,’ along with the other seized materials, were principally located in storage boxes in a locked room at Mar-a-Lago, a secure, controlled access compound utilized regularly to conduct the official business of the United States during the Trump Presidency, which to this day is monitored by the United States Secret Service," Trump’s lawyers said.
They went on to argue that the Presidential Records Act (PRA) gives any president "extraordinary discretion to categorize all his or her records as either Presidential or personal records, and established case law provides for very limited judicial oversight over such categorization."
This image contained in a court filing by the Department of Justice on Aug. 30, 2022, and redacted by in part by the FBI, shows a photo of documents seized during the Aug. 8 search by the FBI of former President Donald Trump's Mar-a-Lago estate in Florida. (Department of Justice via AP)
"The PRA further contains no provision authorizing or allowing for any criminal enforcement," Trump’s lawyers wrote, adding that the law, instead, "disputes regarding the disposition of any Presidential record are to be resolved between such President and the National Archives and Records Administration ("NARA")."
Trump’s legal team argued that the government "at best" may be able to establish that certain presidential records "should be returned to NARA."
"What is clear regarding all of the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with NARA, but not with the Department of Justice," his lawyers wrote.
"President Trump clearly has an individual interest in and need for the seized property," they continued. "The record reflects the material seized from President Trump’s home includes not just ‘personal effects without evidentiary value’ but also approximately five hundred pages of material that is likely subject to attorney-client privilege, as well as medical documents, and tax and accounting information."
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The Justice Department, in its motion last week, contended that Trump could have no interest in the "purported ‘classified records,’" Trump’s lawyers explained, saying however that the government "has not proven that these records remain classified."
"That issue is to be determined later," Trump’s lawyers said.
"Moreover, under the PRA, President Trump has specified rights to restrict access to his Presidential records…and an absolute right to access (or have his designee access) those Presidential records," his lawyers continued. "These rights accord President Trump a sufficient interest in all of the seized materials."
They added: "Indeed, as developed below, President Trump's categorization of records during his term was within his sole discretion."
Former president Donald Trump's Mar-a-Lago resort in Palm Beach, Florida. (Charles Trainor Jr./Miami Herald/Tribune News Service via Getty Images)
Trump and his team have been disputing the classification and believe the information and records to have been declassified.
Meanwhile, the Justice Department and Trump's legal team submitted their preferred candidates to serve as an independent special master to review the records, but the two sides disagree on the scope of duties that person would have.
The Justice Department submitted the names of two retired judges on Friday. The first judge, Barbara Jones, served on the federal bench in Manhattan and served as special master in high profile cases involving Rudy Giuliani and Michael Cohen. The second, Thomas Griffith, is a former federal appeals court jurist in the District of Columbia.
FEDERAL JUDGE ORDERS APPOINTMENT OF SPECIAL MASTER TO REVIEW SEIZED TRUMP RECORDS
The Trump team proposed one retired judge, Raymond Dearie — also the former top federal prosecutor in the Eastern District of New York — and a prominent Florida lawyer, Paul Huck, Jr.
Both parties say they will advise Judge Cannon about their respective positions on the other party’s proposed candidates on Monday, September 12, 2022. If the two sides can not agree on a candidate, Judge Cannon can appoint a candidate on her own.
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Lawyers for Trump said they believe the so-called special master should review all documents seized by the FBI during its search last month of Mar-a-Lago, including records with classification markings, and filter out any that may be protected by claims of executive privilege.
The Justice Department, by contrast, said it does not believe the arbiter should be permitted to inspect classified records or resolve potential claims of executive privilege.
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