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DOJ urges judge to reject Trump’s ‘shell game’ in fight over documents seized from Mar-a-Lago

Nov. 14, 2022 Updated Mon., Nov. 14, 2022 at 12:25 p.m.

In an aerial view, former President Donald Trump's Mar-a-Lago estate on Sept. 14, 2022, in Palm Beach, Florida.   (Joe Raedle/Getty Images North America/TNS)
In an aerial view, former President Donald Trump's Mar-a-Lago estate on Sept. 14, 2022, in Palm Beach, Florida.  (Joe Raedle/Getty Images North America/TNS)
By Zoe Tillman and Erik Larson Bloomberg News

WASHINGTON — The Justice Department accused Donald Trump and his lawyers of “gamesmanship” in the fight over documents seized from the former president’s Mar-a-Lago home.

Trump is claiming he had broad power to designate White House records as “personal” under federal law and that the Justice Department can’t second-guess that decision. But Trump is also arguing that if a court-appointed special master disagrees the documents are “personal,” he should be able to argue that they’re covered by executive privilege.

The Justice Department derided that position in a newly unsealed brief made public on Monday.

Trump “has indicated that he asserts executive privilege only if the special master rejects his assertion that a document is a personal record and determines that it is a presidential record,” the government said. “That is a shell game, and the special master should not indulge it.”

U.S. District Senior Judge Raymond Dearie, the special master overseeing the review of thousands of records seized by the FBI at Mar-a-Lago this summer, has until Dec. 16 to make recommendations to a federal judge in Florida about whether any documents should be kept out of the government’s hands.

Dearie asked both sides to file briefs laying out “global issues” in the case — overarching questions of law that go beyond the document-by-document analysis that he’ll also have to do. The briefs were filed last week and redacted versions were unsealed on Monday.

Trump’s lawyers claim he didn’t have to put any decision to designate White House records as “personal” in writing. He took “action” simply by not handing over documents to the National Archives and Records Administration when he left office, they argued.

Their brief doesn’t explicitly state that the former president personally packed the boxes that were shipped to Mar-a-Lago, and at times Trump and his allies have deflected responsibility for packing decisions, saying the General Services Administration was involved. GSA has said they handled logistics and did not chose what to put in boxes, and documents previously obtained by Bloomberg News appeared to confirm that account.

The Justice Department countered that the President Records Act had clear definitions for “presidential” and “personal” documents, and that many of the pages that Trump was claiming ownership over were “plainly” presidential. Trump’s interpretation of the act “would nullify the statute’s entire purpose,” government lawyers wrote.

Trump and the government offered opposing views about whether Trump could claim executive privilege to shield documents from investigators within the executive branch. The Justice Department said the same dispute was covered in former President Richard Nixon’s landmark suit challenging government efforts to obtain his papers and tapes — a suit he lost.

“The same result readily follows here,” the government said.

Regardless of whether a document is ultimately deemed personal or presidential, the government should be allowed to use the records as part of the criminal probe, the Justice Department argued. Investigators are exploring whether sensitive government information was mishandled and whether Trump or anyone else took steps to obstruct the probe.

“Neither categorization would supply a basis to restrict the government’s review and use of those records,” the government argued. “Indeed, personal records that are not presidential records or government property are seized every day for use in criminal investigations.”

The Justice Department also urged Dearie to require Trump to file an affidavit either confirming or correcting the government’s inventory of material seized from Mar-a-Lago in August. Such a filing would have the effect of forcing Trump to concede that no evidence had been planted by the FBI, as the former president and some of his supporters publicly suggested after the search.

“Since the court appointed the special master to ensure fairness, integrity and even-handedness in the review process, plaintiff should be required to verify or correct the property inventory just as the government has done,” the U.S. said.

As Dearie’s work continues, the Justice Department and Trump’s legal team are simultaneously fighting before a federal appeals court over whether that review should be happening at all. The last brief to the 11th U.S. Circuit Court of Appeals is due Nov. 17.

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