Lawyers for former President Donald Trump urged a federal judge on Monday to reject the Justice Department’s bid to continue reviewing classified documents seized from Mar-a-Lago as part of its criminal investigation, saying the materials may not be classified and that Florida’s resort is safe.
Trump argues that he has broad authority as President to declassify records and that a former President should have an “absolute right of access” to presidential records — classified or not.
The filing is Trump’s latest attempt to cloud the perception of the investigation into the mishandling of national security documents after he left the presidency. The Justice Department has continued to emphasize the stakes of its findings so far, calling for a swift and private review of the intelligence community and highlighting national security risks.
Trump’s team continues to characterize the situation as a dispute over presidential records.
“In what is at its core a document storage controversy that has spiraled out of control, the administration is wrongfully seeking to criminalize the 45th President’s possession of his own presidential and personal records,” Trump’s legal team wrote.
Trump’s deposition called Mar-a-Lago “a secure, controlled access regularly used to conduct official business of the United States during the Trump Presidency, which to this day is monitored by the United States Secret Service” and that the documents were kept in a locked room.
“The government generally points to the alleged urgency of conducting a risk assessment of possible unauthorized disclosure of alleged ‘classified records.’ But there is no indication that the alleged “classified files” were disclosed to anyone,” Trump’s affidavit states.
According to court documents, investigators previously asked Trump in June to secure any classified documents in a locked room at Mar-a-Lago.
When FBI agents arrived in August, they seized 11 sets of classified documents from Mar-a-Lago, including some designated “top secret/SCI” — one of the highest classification levels, according to court documents. Prosecutors also said the search turned up dozens of empty folders labeled “classified banners.”
The “likelihood that improperly stored classified information may be accessed by others and compromised” is a “key aspect of the FBI’s criminal investigation,” prosecutors said.
The Justice Department told the court that it treats documents marked as classified as such until they can be fully reviewed. But Trump’s team is using the fact that the documents have not yet been fully reviewed to argue that he and a special master should have access to the files marked classified.
“There is still disagreement over the classification status of the documents. Therefore, the administration’s position assumes a fact that has not yet been established,” Trump’s team wrote.
The Justice Department filed its request for a stay last week.
U.S. District Judge Aileen Cannon, when she ordered a special master brought in to review documents obtained during the search, halted any use of the seized material in the DOJ’s criminal investigation. He said, however, that the intelligence community’s assessment could continue. The Justice Department maintains that the criminal investigation could not be disconnected from the intelligence community review and that the intelligence review has been discontinued.
The Justice Department also said it would appeal to a higher court if Cannon does not allow intelligence work in the classified files investigation to continue.
No special master has yet been named, but Trump’s team made clear Monday that it believes a third appointee could work with them on a review of seized classified records. “President Trump (and, by extension, a requested special master) cannot deny access to these documents,” his lawyers wrote Monday.
Trump’s team also wrote that “a President has absolute authority under Executive Order to declassify any information. There is no reasonable claim that the CEO’s declassification of documents requires the approval of bureaucratic elements of the executive branch. But the government apparently argues that President Trump, who had full authority to declassify documents, “willfully” withheld classified information in violation of the law. Furthermore, the Government seeks to exclude any opportunity for consideration of this issue.”
This story has been updated with additional details.
