The justice department has indicated it is willing to accept one of Donald Trump’s picks for a so-called special master to review documents seized during the FBI’s search of Mar-a-Lago last month.
The accommodation on the justice department’s part could clear the way for the appointment of a neutral arbiter to review the material after both sides initially suggested rival candidates, although it remains to be seen if the judge handling the request, US district judge Aileen Cannon, would approve the Trump team’s selection.
Justice department lawyers said in a filing on Monday night that, in addition to the two retired judges whom they earlier recommended, they would also be satisfied with one of the Trump team choices – Raymond Dearie, the former chief judge of the federal court in the eastern district of New York. The Trump team said earlier on Monday that it opposed both of the justice department selections.
The move is just the latest twist in a a protracted and increasingly tangled fight over government documents the former president kept at his Florida resort. It came just a few hours after Trump’s lawyers asked Cannon to deny the justice department’s request to regain access to some of the seized documents and restart the criminal investigation into his unauthorized retention of them.
The response from the Trump legal team reiterated its desire for a special master to review all of the seized materials, asking the judge to uphold her earlier order barring prosecutors from using the documents in a criminal investigation until the process was complete.
But in the 21-page filing, Trump’s lawyers interpreted the Presidential Records Act in sometimes unusual ways, and accused the justice department of criminalizing what they considered a dispute between Trump and the National Archives about how documents should be handled.
“In what at its core is a document storage dispute that has spiraled out of control,” the response from the Trump legal team said, “the government wrongfully seeks to criminalize the possession by the 45th president of his own presidential and personal records.”
At the heart of this lengthy battle is Trump’s treatment of secret government files, some of which have been reported to be highly sensitive, even involving nuclear secrets.
Democrats and others have argued that Trump has behaved outrageously in relation to the documents and that the case should end with a prosecution. Trump and his defenders have played down the affair, characterizing it as either politically motivated or blown out of proportion.
Trump’s lawyers appeared to principally advance the argument that the justice department’s request last week to Cannon to regain access to about 100 documents marked classified should not be granted, because Trump may have secretly declassified those documents.
The justice department had asked in its request that prosecutors be allowed to resume working with the 100 documents as documents marked classified could never be personal or presidential records, and Trump therefore had no “possessory interest” – the key legal standard – in the materials.
It also complained that the documents marked classified needed to be reviewed by the FBI, a division of the justice department, in the risk assessment being conducted by the Office of the Director of National Intelligence, which has been halted because officials were unsure about the scope of Cannon’s order.
The FBI seized from Mar-a-Lago about 11,000 documents and 48 empty folders marked classified. The risk assessment into the empty folders, for instance, was to be completed by the FBI – but Cannon’s order threw that review into limbo, the justice department said.
But in the new filing, Trump’s lawyers – without explicitly stating so – suggested that the special master needed to examine those 100 documents for potential privilege protections before prosecutors or the FBI could look at them, because Trump may have declassified them.
The question about whether the documents seized from Mar-a-Lago marked classified – even after Trump’s lawyers represented to the government it had complied with a subpoena demanding any documents marked classified – were actually declassified has become a central issue in the case.
For weeks, Trump and his allies have claimed the documents marked classified stored at Mar-a-Lago were declassified subject to a “standing declassification order” – though his lawyers have never actually said this in court filings, which require statements to be wholly truthful.
The latest filing from the Trump legal team, as with previous court submissions, once more danced around whether Trump actually declassified the materials without cutting either way, and left unclear whether he had actually designated some of the seized materials personal records.
Trump’s lawyers in essence appeared to be making the sort of arguments criminal defense attorneys might make in a motion to suppress after a client has been indicted, rather than in a typical fourth amendment claim pre-indictment, a former US attorney suggested.
The Trump legal team in the filing offered a particularly unusual reading of the Presidential Records Act, on which the entire legal argument is based, claiming the provision that says the National Archives “shall” become the custodian of presidential records, did not mean that it “must”.
