The legal team is opposing the push to exclude classified documents from a special-master review.
The legal team is opposing the push to exclude classified documents from a special-master review.
A s expected, former president Donald Trump’s lawyers have filed a court submission opposing the Justice Department’s request that Judge Aileen Cannon exclude documents marked classified from her ruling last Monday granting Trump’s request for a special master.
The special master, a court-appointed independent lawyer, would review the approximately 13,000 documents and other items seized from Mar-a-Lago by the FBI on August 8. Of these, a small subset — about 100 documents — bear classification markings. No special master has been appointed yet, though the parties have advised Judge Cannon that one of Trump’s proposed candidates is mutually acceptable: retired judge Raymond Dearie, formerly of the federal court for the Eastern District of New York (headquartered in Brooklyn and with jurisdiction over Trump’s native Queens).
Last week, I summarized the Justice Department’s request. In essence, the government is asking Judge Cannon to reconsider that part of her ruling that (a) subjects potentially classified information to the special master’s review, and (b) bars the government from using the classified documents in its ongoing criminal investigation until the special-master review is completed.
How long would the special master’s review take? Trump’s lawyers have vacillated in recent days, estimating that the review could be relatively swift or could take three months. The Justice Department’s filter team, which screened for attorney-client privilege but not executive privilege (which the government does not believe Trump can properly invoke), took about three weeks.
Prosecutors say they will seek redress in the Eleventh Circuit federal appellate court by Thursday if Cannon denies their latest request. Although the government opposes Judge Cannon’s ruling in its entirety, it is probably willing to live with a special master on the vast majority of the documents (in the main, government records of a less-sensitive nature) if the judge relents on the finite subset of documents marked classified.
Trump has posited that he retains authority to assert executive privilege to block the Justice Department from using even classified information in its criminal investigation. In his latest submission, his lawyers’ argument on this score is muted. This is likely because, as a former president, Trump’s claim on executive privilege rests on dicta in the Supreme Court’s 1977 Nixon v. Administrator decision. Trump’s lawyers do not mention the case, probably because (as the DOJ has pointed out) on a faithful application of Nixon, Trump would lose. (Nixon held that whatever executive privilege former presidents have must give way to legitimate government interests of far less consequence than those at issue here.) That is, Trump is better off emphasizing Judge Cannon’s non-committal take on executive privilege — she did not find that Trump has it, just that his lack of it may not be as cut-and-dried as the Justice Department suggests — than he would be if he relied heavily on Nixon.
Confusing the Privilege Claim
At times, Trump’s submission seems to lose track of what the litigation is about. For example, the lawyers argue that the government’s objections are premature because Cannon’s ruling “is not a resolution of the ultimate merits of any argument raised by either President Trump or the Government.” To the contrary, the issue before the court is whether a special master should be granted to review seized documents. Cannon said yes. Whether this was a sound decision is the “ultimate merits.”
Trump’s attorneys also argue that the former president has an “individual interest in and need for” the documents marked classified, just as he has such an interest in attorney-client privileged materials and other personal documents (e.g., medical, tax, and accounting information) seized from Mar-a-Lago. But the litigation is not about whether Trump has any interest in such items; it is about whether he has a very specific interest, namely, a legitimate claim of executive privilege by which he can bar third-party access.
If we were talking about some other kind of interest, such as an ownership interest in items arguably of little or no relevance to the government’s investigation, Trump could simply have made a motion for return of property. Such motions are standard fare following a search pursuant to warrant, and they typically do not trigger appointment of a special master. As for attorney-client documents, the government says it has already segregated anything that might be subject to attorney-client privilege — using an over-inclusive process. That, again, is not an extraordinary situation: The Justice Department has a filtering process for it, for which it sought and obtained court-authorization when it applied for the search warrant.
Contrary to counsel’s suggestion, moreover, the government is not saying that Trump lacks any interest in access to potentially classified intelligence generated during his time in office; it is saying that he has no authority to claim executive privilege to block the incumbent executive branch’s use of that intelligence.
Nor, contrary to the claim of Trump’s lawyers, is the Justice Department saying “that President Trump is not permitted to claim executive privilege of documents in the custody of the Executive Branch.” Again, the DOJ is saying that Trump has no authority to claim executive privilege against the executive branch itself. In fact, as a former president, Trump has already been permitted to try to claim executive privilege regarding documents in the custody of the executive branch: He tried to block Congress from access to presidential records from his term that are in the National Archives’ custody. To be sure, he lost on the merits because the court found that Congress’s need for the information outweighed his need for confidentiality, but he was still permitted to assert the claim. The issue at the moment is not whether the former president could ever assert executive privilege (and, for what it’s worth, I do not believe former presidents should be able to do that); the issue is whether Trump can legitimately assert against the executive branch a privilege that exists precisely to promote the functioning of the executive branch.
Has Trump Declassified Documents?
The most intriguing part of the former president’s submission is counsel’s strong suggestion, without coming out and saying as much, that while he was president, Trump declassified the documents that are marked classified. In the court filing, Trump’s counsel refer to the documents as “purportedly” classified, or else they put quotes around the word classified. The implication, sometimes made explicit, is that the government has not established that these documents are, in fact, classified.
Trump has the shoe on the wrong foot. That the documents are marked classified is not in dispute. From the government’s standpoint, there can be no better evidence that they are classified than these markings. In the absence of any positive evidence that they have been declassified, they must be deemed classified at this stage.
Trump’s lawyers vigorously argue that presidents have authority to declassify information — a proposition that no one well-versed in these matters disputes. They further contend that the president is not subject to the procedures that subordinate officials must follow in order to declassify documents. That, too, is almost certainly true (though the proposition is not as indisputable). But the gaping hole in Trump’s argument is that, for presidential declassification to happen, the president has to take action to accomplish it.
The Trump submission is accompanied by no affidavit from Trump himself relating what he supposedly did to declassify the documents. And given that Trump’s lawyers provocatively dance around this issue but won’t come out and claim that the documents are declassified, common sense suggests that the lawyers are going as far as they believe they can go without being accused of misleading the court: They likely fear that they cannot prove Trump declassified anything, they don’t want to say that he did if he didn’t, and they are trying to navigate around this vortex by shifting the burden of proof to the government.
At the moment, however, this is a civil lawsuit. It was voluntarily brought by Trump as plaintiff. This is not a criminal case, in which Trump would be the defendant and the government would bear the burden of proof. Presumably, in the civil case, the burden of proof is on the plaintiff. The government is claiming the documents are classified and has proffered convincing evidence: They are marked classified, and there is no evidence that they were ever declassified. If Trump now claims that the documents are no longer classified, it should be on him to explain how that happened.
On that score, I would note that, while Trump’s submission heavily relies on the Presidential Records Act to the extent he sees it as helpful, one PRA provision he does not cite is Section 2203(a), which states in pertinent part:
[T]he President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President’s constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presidential records[.] [Emphasis added.]
In light of this statutory requirement, we must presume that Trump documented and preserved in his records whatever action he took to declassify the documents found at Mar-a-Lago — if, in fact, he did declassify them. Yet, besides providing no affidavit from the former president, Trump’s attorneys point to no written presidential record establishing his declassification of the relevant documents.
The lack of declassification evidence is not surprising. If Trump did declassify highly sensitive national-defense secrets en masse, that itself would be a scandal — in some ways worse than the scandal we now have (since Trump’s declassification, for the selfish purpose of evading classified information laws, would not change the fact that intelligence methods and sources would be endangered if these documents fell into the wrong hands). In any event, if Trump wants to contend, in the lawsuit he has brought, that the documents are not classified, he should provide a factual basis for this claim.
If There Are Presidential Records Act Violations, Can They Be Enforced by Criminal Prosecution?
With all that said, Trump’s attorneys have posited an argument the Justice Department will have to grapple with.
As I’ve pointed out, when Congress enacted the PRA in 1978, it did not include criminal-enforcement mechanisms. It was also very solicitous of former presidents, a stance no doubt explained by the fact that presidential documents had formerly been understood to be the president’s property. The PRA conclusively changed this understanding — henceforth, presidential records were deemed to be government property. But the PRA gives former presidents broad discretion to exclude from these records any “personal records.”
To read Trump’s submission, one might assume that the “personal records” category is nigh limitless. The lawyers include the PRA’s general definition (in Section 2201(3)) of what is “personal”: documentary materials “of a purely private or nonpublic character.” Yet, they omit the three subsections that follow. Those subsections flush out and thus narrow what “private” means: diaries or other personal notes; partisan political matters that are unrelated to the president’s official duties; and political materials related to elections — whether the president’s own election or the elections of others to various offices. By contrast, documents generated by the president and his staff that relate to “the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President,” are not private and must be archived (under Section 2201(2)).
Let’s assume, then, that it is usually easy to distinguish presidential records that must be archived from private records that are excluded from such government recordkeeping. Someone still has to do that distinguishing.
Trump’s lawyers contend that it is the president who is given this authority, together with broad discretion in exercising it. They argue that once the president has categorized records as personal, the PRA gives the government archivist no authority to second-guess that designation. The implication is that the courts are powerless to second-guess, even though — as we’ve just seen — the statute provides objective, readily applicable definitions of “presidential records” and “personal records.” Essentially, Trump’s attorneys contend that, no matter how clearly a document may appear to fit the category of presidential records that must be archived, a president’s categorization of a document as a personal item is final.
Of course, Trump did not comply with the PRA, whose benefits he now seeks. The documents shipped to Mar-a-Lago were never archived as government records. As with the documents marked classified, there is no known indication that Trump made a categorization determination that some or all of the records are personal. The odds are sufficiently high that many (if not most) of the records are not personal, and that a court would so rule. Even Trump’s lawyers concede the possibility that some of them should be in the National Archives, rather than in Trump’s personal residence.
Nevertheless, the lawyers insist that this is a civil-law dispute that cannot be grist for a criminal prosecution. Furthermore, since the PRA gives a former president free access to his records — though not ownership or control of them — counsel portrays what’s at issue as a minor “storage dispute” that the Justice Department has blown out of all proportion. That is, if Trump was hoarding presidential records that are at least arguably personal, and to which he is guaranteed access in any event, what’s the big deal?
Presumably, the government will counter that Section 2071 of the federal penal code, which makes it a crime to remove or conceal federal government records, applies to presidential records, even if Congress did not provide for criminal enforcement in the PRA itself. Prosecutors have already contended as much, and Magistrate Judge Bruce Reinhart found probable cause of a Section 2071 violation (in addition to probable cause of Espionage Act and obstruction offenses) in issuing the warrant. Trump’s submission does not address Section 2071, but his lawyers would presumably argue that the PRA expressly controls presidential records and cannot be overridden by a criminal statute that does not specifically mention presidential records (just government records in general).
This will not be an easy dispute to sort out. It is unprecedented: The Justice Department has never tried to enforce the PRA by criminal-law mechanisms. For now, Trump has not been charged, so the question of whether he may be criminally prosecuted for retaining presidential records in violation of the PRA is premature. The only question before the court is whether the former president has authority to assert executive privilege over these records.
Beyond that, suffice it to say that if it were not for the allegedly egregious conduct of (a) mishandling highly classified information and (b) obstructing the government’s investigation – i.e., if the only potential offense at stake were a wholesale flouting of the PRA — it is doubtful that the Justice Department would have sought a search warrant, or would consider an indictment.