Former US President Donald Trump delivers the keynote address to the Faith and Freedom Coalition during their annual Road to the Majority Policy Conference at the Gaylord Opryland Resort & Convention Center on June 17, 2022 in Nashville, Tennessee. Trump’s appearance came after the third public hearing of the House of Representatives committee investigating the attack on the US Capitol.
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Donald Trump’s lawyers repeatedly failed to show that the former president had declassified government documents that were seized from his Florida home as part of a criminal investigation, the Justice Department told a federal appeals court.
The Justice Department made that argument Tuesday night in an attempt to resume review of classified documents that were seized from Trump’s Palm Beach, Mar-a-Lago home during an FBI raid last month.
The Justice Department’s filing with the U.S. Court of Appeals for the 11th Circuit dismissed Trump’s lawyers, who earlier Tuesday asked the court to keep ruling by a lower federal judge barring the government from reviewing the seized documents.
Trump “again suggests that he may have declassified the records before he left office,” federal prosecutors wrote.
“However, as before, Plaintiff clearly fails to show, much less shows, that he actually took this step,” they wrote, referring to Trump.
Justice Department lawyers added that Trump “now resisting” a request by a court-appointed special master to present evidence that he declassified the seized records.
“In any event, plaintiff’s efforts to raise issues of classification status are prejudicial,” prosecutors argued. “Even if Plaintiff could show that he declassified the documents at issue, there would still be no justification for restricting the government’s use of evidence at the center of an ongoing criminal investigation.”
US District Judge Eileen Cannon authorized the appointment of a special master, an independent third party, who will review thousands of records to identify personal items and information that may be protected by various legal privileges. As part of the order, Cannon temporarily stopped the Justice Department from reviewing or using the seized materials as part of a criminal investigation.
The Justice Department appealed, asking the 11th Circuit to overturn the portion of Cannon’s order that barred the use of classified government records and required the government to disclose those records to a special master.
Attorneys for Trump and the Justice Department appeared in Brooklyn, New York, on Tuesday afternoon for a conference call with the special master, U.S. District Judge Raymond Deary. He was handpicked for the role by Trump and appointed by Cannon, who herself was nominated by Trump.
But at Tuesday’s court hearing, Deary expressed skepticism regarding Trump’s attorneys, which, if any, of the seized Mar-a-Lago records have been declassified, according to NBC News.
The Justice Department has provided “prima facie evidence” that the classified documents are, in fact, classified, Deary said. If Trump’s lawyers can’t produce evidence to challenge that position, “As far as I’m concerned, that’s the end of it,” Deary said.
The FBI raided Mar-a-Lago on August 8, looking for material that indicated violations of the obstruction of justice and suppression of official documents laws, as well as the US Espionage Act.
Federal agents caught up more than 100 documents with secret markings in that raid, the Justice Department later revealed. Court documents also revealed that the FBI found four dozen empty folders during a raid marked SECRET. Deary said Tuesday that 11,000 documents are being reviewed.
Trump and his allies have claimed in interviews and on social media that he declassified all government documents that were obtained from Mar-a-Lago. But the ex-president’s lawyers did not support this statement in court.
On Tuesday, they instead told the appeals court that the Justice Department had failed to prove the documents were classified and argued that the president “has absolute authority to declassify any information.”
In a footnote, Trump’s lawyers added: “The fact that documents contain classification markings does not necessarily negate claims of privilege.” They pointed to the fact that some of the classified documents also include Trump’s handwritten notes, according to the probable cause affidavit used to obtain the search warrant at Mar-a-Lago.
“These memos certainly may contain sensitive information,” Trump’s lawyers wrote.
Speaking before a special master in federal court in Brooklyn Tuesday afternoon, Trump attorney James Trusty said, “We shouldn’t be able to disclose” witness statements and testimony on the classification issue, NBC reported.
Deary replied, “I believe you can’t have your cake and eat it too.”