Attorneys for former president Donald Trump are now claiming the Department of Justice has no right to use the classified documents seized during the 8 August FBI search of his property because they may not be classified at all.
Last week, US District Judge Aileen Cannon — an appointee of the former president — issued a ruling which effectively barred the Department of Justice from using any of the documents seized from Mr Trump’s property to further the criminal investigation into the ex-president until a third-party special master could review the documents and determine whether any are privileged.
Prosecutors have asked Judge Cannon to reconsider the ruling with respect to 100 of the seized documents, all of which bear classification markings. They claim that the government needs the FBI to participate in a review to determine whether Mr Trump’s retention of them harmed national security.
In a motion asking her to stay her previous order, prosecutors said Mr Trump “does not and could not assert that he owns or has any possessory interest in classified records”. But in a Monday court filing, Mr Trump’s lawyers said the government “has not proven these records remain classified,” adding that the issue of classification would be “determined later?”
According to court documents, FBI agents who executed the search warrant for Mr Trump’s property last month discovered more than 100 “unique documents with classification markings” at his Mar-a-Lago residence, including three stored in the ex-president’s desk.
The documents bore markings indicating classification levels ranging from confidential – the lowest level of classification in the US system – to the highest, top secret. Some bore additional markings denoting them as containing information pertaining to nuclear weapons or human and signals intelligence sources.
Some of Mr Trump’s allies have suggested that he declassified the documents before removing them from the White House in the waning weeks of his term. Though, no one, including the twice-impeached ex-president, has offered any proof that he issued such a sweeping declassification order, nor has any proof of such an order emerged through other sources.
The ex-president’s lawyers go even further, however, by arguing that the Department of Justice has no right to access any seized documents because they are either presidential records which should be with the National Archives or personal records that must be returned to the ex-president.
“At best, the Government might ultimately be able to establish certain Presidential records should be returned to Nara. What is clear regarding all of the seized materials is that they belong with either President Trump ... or with Nara, but not with the Department of Justice,” they wrote.
