Politico

Justice Department accuses Trump of ‘shell game’ with Mar-a-Lago documents

Former President Donald Trump mischaracterized White House documents he retained after leaving office as “personal,” the Justice Department argued in anewly unsealed court filing, accusing Trump of engaging in a “shell game” to shield documents from criminal investigators.

In the filing, unsealed Monday by U.S. District Court Judge Aileen Cannon, prosecutors contended Trump has sought to restrict investigators’ access to materials — seized by the FBI in August from his Mar-a-Lago estate — by inappropriately claiming they’re his personal property. Federal law permits presidents to declare some records as “personal” so long as they have no decision-making value to future administrations.

But DOJ says Trump’s claim is self-defeating. If the records are genuinely personal, prosecutors argue, then there’s no basis to shield them from investigators.

“Indeed, personal records that are not presidential records or government property are seized every day for use in criminal investigations,” counterintelligence chief Jay Bratt wrote.

The department’s argument came in response to a request from U.S. District Court Judge Raymond Dearie, whom Cannon appointed as “special master” to review the documents seized from Trump’s estate for potentially privileged records. Dearie asked DOJ and Trump’s attorneys to brief him on matters concerning executive privilege and the classification of White House records as “personal,” two thorny issues that are rarely raised in criminal investigations.

Cannon’s appointment of the special master slowed DOJ’s pursuit of a potential criminal case against Trump for retaining highly sensitive national security documents at Mar-a-Lago after he left office. Dearie is slated to decide next month whether to recommend that prosecutors be permitted to access the documents, though Cannon has the ultimate decision. Prosecutors say their evidence suggests Trump or his associates also attempted to obstruct DOJ’s efforts to retrieve the records.

In his own brief, Trump contended that by simply relocating thousands of documents from the White House to Mar-a-Lago, he implicitly labeled them “personal,” and his attorneys contend that there’s no legal recourse for DOJ to challenge that designation. Trump also asserted that executive privilege may apply to some of the records, despite DOJ’s claim that it would be unprecedented to shield sensitive government records from the very Executive Branch that created them.

Prosecutors argued that accepting Trump’s argument that the documents essentially became personal solely because he kept them would open a gaping loophole in the law Congress passed in 1978 declaring presidential records to be government property, the Presidential Records Act.

Trump “appears to be claiming that he can unilaterally ‘deem’ otherwise Presidential records to be personal records by fiat,” Bratt wrote. “Such a reading of the PRA would nullify the statute’s entire purpose by allowing a President to designate all of his official records as ‘personal’ records and then to remove them upon departure from the White House. … It would reduce the PRA’s detailed definitions of ‘Presidential records’ and ‘personal records’ to mere suggestions.”

Prosecutors also bristled at Trump’s effort to characterize some of the “personal” records as protected by executive privilege. Any documents that would be purely personal in nature, Bratt noted, could not conceivably be shielded by executive privilege, a principle meant to protect sensitive government records and internal White House communications.

“That is a shell game, and the Special Master should not indulge it,” Bratt wrote.

Trump has sought to frame the dispute around a 2012 ruling by U.S. District Court Judge Amy Berman Jackson related to a Clinton-era records dispute litigated by Judicial Watch, helmed by Trump ally Tom Fitton.

In her ruling, Jackson rejected Judicial Watch’s effort to obtain tapes of President Bill Clinton’s interviews with a journalist that the former president had retained in a sock drawer in the White House residence. The judge ruled Clinton’s decision to keep the tapes rendered them “personal” and the National Archives did not challenge that designation.

The decade-old decision by Jackson, a district court judge appointed by President Barack Obama, is not binding on any other judges. However, it has taken on outsized proportions in the Mar-a-Lago document fight, in part because there are only a handful of court cases interpreting the presidential records law, passed amidst protracted legal wrangling over former President Richard Nixon’s files.

DOJ says the 2012 opinion from Jackson is inapplicable to the current dispute, in which the National Archives challenged Trump’s designation of the records as “personal.” The Presidential Records Act permits the Archives to take steps to recover documents it deems government property.

Trump contends the only legal recourse for the Archives and the Justice Department would have been to sue him to demand return of the records, rather than embark on a grand jury investigation and potential criminal prosecution. Trump has also spent recent months lodging unsupported claims that the National Archives leadership is politically biased against him.

Dearie is expected to rule next month on which, if any, of the roughly 3,000 seized documents should be withheld from investigators. Prosecutors and Trump will then be able to raise any disagreements with Cannon. In addition, the Justice Department has a pending appeal at the 11th Circuit Court of Appeals, asking that the entire process Cannon ordered at Trump’s request be shut down.

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