(CNN) — Former President Donald Trump argued in a recent public court filing that a president can determine whether his White House documents are private, and that he has determined that all the records he brought to Mar-a-Lago are actually his property.
The argument reflects a recent legal effort to halt parts of the criminal investigation into documents containing sensitive information stored at Trump’s Florida compound after he left the White House.
The Justice Department responded that the legal theory about when Trump can personally review his White House records is flawed.
“A plaintiff may not refer to records that qualify as ‘presidential records’ under the Presidential Records Act by simply stating that they are his ‘personal’ records,” the department said. He added that such a theory would “defeat” the purpose of the Act.
The claims come amid a spate of “global issues” that Trump and the Justice Department filed under seal last week to present their far-reaching arguments to independent expert witness Raymond Deary, a top judge in Brooklyn, about how he should approach his case. The items the FBI seized from Trump’s Florida home in August.
District Judge Eileen Cannon, who appointed Deary to conduct an independent review of the documents to be withheld from investigators for privilege reasons, unsealed the brief abridged version on Monday.
The Justice Department told an investigative expert that prosecutors should be allowed to use nearly 2,800 documents in their criminal investigation.
That means criminal investigators have access to most of the documents seized from the former president’s Florida resort. Protected by executive privilege, according to a new Department of Justice (DOJ) filing.
Trump sought to classify “several hundred” of the seized records as his personal records, the DOJ said. While attacking its reasoning for doing so, it also argued that even if the records were private, they should not be barred from a federal criminal investigation into alleged mishandling of Trump White House materials discovered at Mar-a-Lago.
The former president argued that if the federal government disagreed with the way he designated private records, he should be sued.
“The attorney was authorized to designate and designate as personal records the materials seized while serving as president,” Trump’s legal team wrote. “Some of the personal records President Trump was still carrying out his term of office were respectable, and the records in question were presumptively private.”
An examination of the Mar-a-Lago documents marked as classified was not included in the hearing expert’s review of the disputed documents, which totaled 22,000 pages. The documents are being examined by intelligence officials and criminal prosecutors.
Controversy over administrative privilege
The department also responded to Trump’s assertion that former presidents can assert executive privilege over documents if Deary rejects Trump’s contention that a document is a personal record, condemning Trump’s consideration of the records as private. “The investigator should not have allowed these types of unusual moves,” the DOJ wrote.
The department pushed back that Trump should be forced to testify under oath if the government accurately describes what was taken from Mar-a-Lago.
It would also put the former president under an obligation to back up public and out-of-court statements that the FBI says put evidence in the record. Trump’s lawyers have resisted demands that he approve the government’s description of the seizure at his resort.
In the new filing, the department pointed to Cannon’s earlier move to avoid requiring such notification. It did so at the time on the principle that Trump had no opportunity to review the seized material, the DOJ noted.
“Now that the plaintiff has reviewed the seized materials and has insisted that most of them are his personal records, in view of fairness, integrity and impartiality, the plaintiff should do what the government did, which is to verify the list of assets. Or correct him if he is mistaken,” the lawyers said.
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