The senior federal judge who is tasked with reviewing the more than 11,000 government-owned documents retrieved from former president Donald Trump’s home appeared sceptical of the ex-president’s lawyers’ claim that they need not tell him whether Mr Trump declassified any of the 100 records which still bore classification markings when they were found by investigators.
After Trump lawyer James Trusty told Senior District Judge Raymond Dearie that he and his colleagues were “not in a position” to tell him whether Mr Trump ordered any of the records at issue declassified before his term as president ended, Judge Dearie replied: “You did bring a lawsuit.”
The semi-retired jurist hosted attorneys for the twice-impeached ex-president and the Department of Justice at a hearing in his Brooklyn, New York, courtroom on Tuesday, just one day after he put out a preliminary plan for how he will review the documents he is charged with examining under an order from a Trump-appointed federal judge in Florida.
Mr Dearie told Mr Trusty he was “taken aback” by a separate argument that determining whether any of the records at issue are indeed classified goes beyond his brief.
"I think I'm doing what I'm told," said the veteran jurist, who was named to the bench by President Ronald Reagan.
Judge Dearie also pushed back against the Trump team’s argument that there is a legitimate dispute over whether records that are clearly marked as classified at levels as high as “top secret” are indeed classified.
“The government gives me prima facie evidence that these are classified documents — as far as I’m concerned, that’s the end of it,” he said.
Mr Trump’s attorneys had previously signalled their intent to resist offering any claims of declassification in a letter to the judge on Sunday. The Trump team said doing so would force Mr Trump to “fully and specifically disclose a defence to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order”.
The judge did not appear impressed.
“You can’t have your cake and eat it,” he said.
The Monday afternoon hearing took place just days after the Justice Department gave notice that it would appeal the Florida judge’s ruling, which prohibits the government from using any of the records it retrieved during the court-authorised search of Mr Trump’s property in criminal proceedings against the former president until Judge Dearie determines whether records may be shielded by attorney-client or executive privilege.
In a response to the appeal filed with the 11th Circuit Court of Appeals, Mr Trump’s lawyers called the criminal investigation into the ex-president’s document-handling practices "unprecedented and misguided” and said the Florida judge’s order appointing a special master was “a sensible preliminary step toward restoring order from chaos” that will restore public confidence in the same justice department their client has spent years attacking as biased against Republicans.
With additional reporting by agencies
