The U.S. Justice Department in a court filing unsealed on Monday accused Donald Trump’s lawyers of “gamesmanship” for arguing that some of the documents seized by the FBI from the former president’s Florida estate should be kept out of a criminal investigation because they are “personal” or privileged.
Trump, who may announce a 2024 run for the presidency on Tuesday, has fought to keep materials seized by FBI agents during a court-approved Aug. 8 search at his Mar-a-Lago estate in Palm Beach away from investigators in their criminal probe involving sensitive government records taken when he left office last year.
The newly unsealed filings by the Justice Department and Trump’s lawyers were made to U.S. Judge Raymond Dearie, an independent arbiter named to review the seized documents to consider whether any should be walled off from investigators.
The department’s filing stated that Trump is claiming privilege over 122 documents taken in the federal raid. Prosecutors wrote that they should then be allowed access to nearly 2,800 other papers that they are currently blocked from reviewing as part of their investigation.
Under federal law, a president can retain personal records after leaving office, but these must be unrelated to official work.
Trump’s attorneys argued in their filing that he can unilaterally determine that records are personal, that he does not need to provide evidence that he made that determination, and that the decision cannot be challenged. The Justice Department wrote in separate filings that Trump cannot claim that government records are his personal papers “simply by saying so” or “simply by the act of removing them from the White House.”
The filings, released with some parts blacked out, were initially made under seal last Tuesday. It is not clear from the redacted court filings exactly which documents Trump is claiming as personal. The Justice Department has said that about 100 pages of the roughly 11,000 seized records are marked as classified, and other court filings show that government records were mixed in with items such as media clippings.
If Dearie, a so-called special master named to conduct a review of items taken in the search, decides the papers are not personal, Trump’s lawyers said Dearie should instead find that they are covered by executive privilege – still keeping them away from investigators. That legal doctrine allows a president to keep certain documents or information secret.
The department said Trump cannot assert executive privilege over any documents he has claimed as personal records because any such records must be unrelated to official duties.
“The Special Master should not indulge this type of gamesmanship,” prosecutors wrote.
Prosecutors are looking into whether Trump broke federal law by taking the records and also whether he obstructed the investigation into the missing papers.
Two weeks after the search, Trump filed a civil lawsuit in an effort to delay the investigation and keep some records from investigators by asking a judge to appoint a special master to conduct a review on whether any should be deemed privileged. U.S. District Judge Aileen Cannon, a Trump appointee, named Dearie to the role.
Trump has stated on social media, without offering evidence, that he declassified all of the records and that the FBI may have planted evidence. Trump’s attorneys have not made such arguments in any official court filings.
The Justice Department is appealing Cannon’s decision to appoint a special master, telling the Atlanta-based 11th U.S. Circuit Court of Appeals she overstepped her authority and that her ruling harmed the investigation. Trump’s legal team on Thursday filed papers arguing that Dearie’s review should move forward.
Cannon initially barred the department from using all of the seized records for its criminal investigation until Dearie’s review is complete. The 11th Circuit then reversed a portion of Cannon’s order, ruling that she erred by blocking the department from accessing the classified materials for its investigation.