Trump accuses justice dept of criminalising his possession of records

Donald Trump's lawyers made the broad argument that the Presidential Records Act allows a president to take whatever document he wants

Former President Donald Trump accused the Justice Department of “criminalizing” his possession of personal documents by investigating the presence of hundreds of highly classified White House records at his Mar-a-Lago estate.
 

Trump made the allegation in a Wednesday night court filing seeking to bolster his case for a neutral third party to review documents seized by the FBI during an Aug. 8 search of the former president’s Florida home. A federal judge who was appointed to the bench by the former president is scheduled to hear arguments on his request Thursday at 1 p.m. in West Palm Beach.

Trump’s lawyers made the broad argument that the Presidential Records Act allows a president to take whatever document he wants.

The search was “an unprecedented, unnecessary, and legally unsupported raid on the home of a president -- and possibly a candidate against the current chief executive in 2024,” Trump’s lawyers said in the filing. 

The Wednesday submission was in response to a Justice Department filing the night before that said the Aug. 8 search was justified because the government had developed evidence that documents on the property had been hidden or moved prior to an earlier June visit by FBI agents. That visit was conducted pursuant to a May 11 grand jury subpoena.

Trump’s filing didn’t address the DOJ’s allegation of potential obstruction of justice, other than to signal a dispute about the facts of what happened in June.

The lawyers appeared to use the filing to also raise a broader grievance about Trump’s purported legal standing -- or right -- to challenge the search itself in addition to arguing the underlying dispute in the case: his request for a so-called special master to review the documents.

“It is the reasonable expectation of privacy in one’s home that triggers the obvious standing of the homeowner to contest a search on those premises,” Trump’s lawyers said.

Trump’s Aug. 22 lawsuit, filed two weeks after the unprecedented search of his property, seeks to have a special master review all the seized material and flag any records that might be protected by attorney-client or executive privilege.

Trump has claimed that at least some of the records are protected by executive privilege, saying in a social-media post on Aug. 14: “By copy of this TRUTH, I respectfully request that these documents be immediately returned to the location from which they were taken.”

But legal experts have noted only the current president can exercise executive privilege over documents, and Joe Biden has declined to do so over the material Trump had.

The Justice Department argued that Trump has no right to exert executive privilege over any of the seized documents, many of which were classified. The government said its own privilege-review team had completed its analysis and located a “limited set” of records potentially covered by attorney-client privilege and is following a court-approved process for handling them.

Trump rejected the government’s assurances that its filter team properly reviewed the documents and said no effort was made to talk to him about the adequacy of the privilege review team’s composition and procedures.

“The privilege review team and procedures for potential privilege issues were wholly deficient,” Trump’s lawyers wrote.

Trump’s lawyers said the Justice Department’s opposition to a special master shows that it is not, contrary to Attorney General Merrick Garland’s claims, free of political bias.

“Even yesterday, the government’s response gratuitously included a photograph of allegedly classified materials, pulled from a container and spread across the floor for dramatic effect.”

Trump has consistently denied wrongdoing and offered a variety of reasons for his innocence, including that he had authority to declassify any records. He has also claimed without evidence that the investigation is politically motivated.

The Aug. 8 search resulted in FBI agents carting away about 20 boxes of documents including 11 sets of classified records. Trump in January returned 15 boxes of sensitive White House records sought by the National Archives. An initial review of those documents found hundreds of classified records, prompting the Archives to refer the matter the DOJ for a criminal probe.

“The notion that presidential records would contain sensitive information should have never been cause for alarm,” Trump’s lawyers said in Wednesday’s filing.

The case is Trump v. United States of America, 22-cv-81294, US District Court, Southern District of Florida (West Palm Beach).