Former President Donald Trump is claiming that some documents seized by the Department of Justice from his Mar-a-Lago estate are both personal property and subject to executive privilege, an argument the Justice Department says Trump “cannot logically assert,” according to a report from The New York Times.
The Justice Department in August retrieved thousands of documents from Trump’s residence at Mar-a-Lago, including troves of classified and top-secret material, only a fraction of which have undergone review by a court-appointed arbiter. Disputes have already arisen over 15 of those documents, nine of which Trump says belong to him. They include six briefs provided to him regarding potential presidential pardons, documents related to immigration policy, and an email “from a person at one of the military academies.”
In a letter outlining disputes over the documents submitted to the court by the DOJ, the government’s lawyers argue that because the documents were created or received in Trump’s capacity as president they fall under the authority of the Presidential Records Act. The department points out that no court “has suggested that otherwise Presidential records may be rendered personal by fiat,” or that the National Archives, which first identified the missing documents, would have no recourse to dispute such claims.
In one instance, the department accuses Trump of illogically attempting to assert both executive privilege and personal property rights over some of the documents. “[Trump] cannot logically assert Executive Privilege over two of the documents,” the DOJ wrote, “because the parties agree that those documents are personal and not Presidential records. Only official records are subject to assertions of Executive Privilege.”
The department further rejected the notion that an item being “personal property” precluded it from being evidence in a criminal investigation. “Personal records that are not government property are seized every day for use in criminal investigations,” the letter read. “And the fact that more than 100 documents bearing classification markings were commingled with unclassified and even personal records is important evidence in the government’s investigation in this case.”
Trump fought long and hard to convince the court to appoint a “special master” to review the trove of documents seized by federal investigators from his Palm Beach residence. Judge Raymond Dearie, the court-appointed special master, has repeatedly pushed back on the Trump legal team’s inability to provide evidence backing up claims that Trump declassified documents, or that documents he retained were personal property unrelated to his term as president. According to the Times, Judge Dearie echoed the DOJ’s argument in a call this week, stating that “there’s certainly an incongruity” in the Trump team’s claims over the documents.
Earlier this month, the Supreme Court rejected an effort by Trump to block the DOJ from accessing and reviewing the documents recovered at his property. Reports indicate that federal investigators remain unconvinced that they have retrieved all of the documents Trump took from the White House, and are exploring the possibility that more material was stored at other Trump properties.