Attorneys for former President Donald Trump on Wednesday filed a 19-page response to counter a Department of Justice filing that asserted that members of his legal team engaged in “obstructive conduct” by concealing documents at his Mar-a-Lago estate in Palm Beach, Florida.
In a response filed in U.S. District Court for the Southern District of Florida, Trump’s attorneys argued that the National Archives should have expected to find classified material among the 15 boxes Trump turned over in January from Mar-a-Lago because they were presidential records.
Attorneys said that while classified material was found at Mar-a-Lago, it should not have been cause for alarm and should not have led to a search of the former president’s residence on Aug. 8.
“The purported justification for the initiation of this criminal probe was the alleged discovery of sensitive information contained within the 15 boxes of Presidential records,” Trump’s lawyers wrote. “But this ‘discovery’ was to be fully anticipated given the very nature of Presidential records. Simply put, the notion that Presidential records would contain sensitive information should have never been cause for alarm.”
Trump is attempting to get a “special master” appointed to review documents that the FBI seized at his South Florida residence.
Trump officially responds to the Justice Department's blockbuster Mar-a-Lago filing in his suit seeking a "special master" ahead of tomorrow's hearing. https://t.co/OucXASKsn3
— CNN Breaking News (@cnnbrk) September 1, 2022
A judge will make a decision about the appointment of a special master during a hearing on Thursday. Federal prosecutors oppose the request and want the lawsuit dismissed, according to CNN. They claim that such an appointment would impede the ongoing criminal investigation and the intelligence community’s review of any national security risks.
“Left unchecked, the DOJ will impugn, leak, and publicize selective aspects of their investigation with no recourse for [Trump] but to somehow trust the self-restraint of currently unchecked investigators,” Trump’s attorneys wrote. “While DOJ may have succeeded in taking a partial filter to their rummaged proceeds, the need for a Special Master remains in place.”
Attorneys also said the DOJ had “gratuitously” made public certain information, including a photograph of classified documents seized from the home, according to The Associated Press.
In a filing that was announced late Tuesday, the DOJ said that “government records were likely concealed and removed” from a storage room at the former president’s Mar-a-Lago estate in an apparent effort to obstruct the investigation into classified documents found at the property, The Associated Press reported. The DOJ said the FBI seized 33 boxes when a search warrant was executed at Mar-a-Lago. After reviewing the items, investigators determined that 13 boxes included more than 100 “unique documents with classification markings,” the filing said.
Authorities have said that they are investigating possible violations of the Espionage Act, along with possible obstruction of justice and unlawful concealment or removal of government records.
The latest filing comes after two attorneys for Trump could become witnesses or targets into the investigation about documents being hoarded at Mar-a-Lago that were marked classified, The New York Times reported. Prosecutors claim that Trump held onto the documents even after his attorneys, M. Evan Corcoran and Christina Bobb, claimed that all sensitive materials had been returned.
In a preliminary order filed Saturday, U.S. District Judge Aileen Cannon said that she is inclined to appoint a special master to review the items seized.
The government argued that Trump had no right to the documents seized from Mar-a-Lago because they are likely to be presidential records which are, in fact, owned by the public. They pointed to the complaint filed by Trump’s attorneys, in which the lawyers said the documents seized “were created during (Trump’s) term as President.”
Further, they said in a court filing that Trump could not claim executive privilege to bar authorities from reviewing the records.
“This case involves the recovery and review of executive records by executive officials performing core executive functions,” they said.
The DOJ argued that it was also too late to grant a preliminary injunction to stop officials from reviewing the seized documents because they have already reviewed them and put aside any that might fall under attorney-client privilege. An injunction would hinder the ongoing law enforcement investigation and “thwart entirely an ongoing and sensitive review of risks to national security,” authorities said.
They said the government sought a search warrant only after exhausting other options. In January, Trump turned over 15 boxes of miscellaneous papers that included more than 180 confidential records -- 25 of which were marked as top secret -- following a year of requests from the National Archives and Records Administration, according to court records. Officials subsequently served the former president with a grand jury subpoena that prompted him to turn over 38 more classified documents in June, authorities said.
A representative for the president certified that the documents handed over in June were the only confidential records found still in boxes taken from the White House to Mar-a-Lago after Trump’s presidency. However, authorities said that during their search of the estate earlier this month, they seized over 100 more documents marked as classified.
“The classification levels ranged from CONFIDENTIAL to TOP SECRET information, and certain documents included additional sensitive compartments that signify very limited distribution,” officials said Tuesday in a court filing. “In some instances, even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances before they were permitted to review certain documents.”
Officials have undertaken a classification review of the documents. Officials with the Office of the Director of National Intelligence are also assessing the potential risk the documents might pose if they were exposed.
Trump’s attorneys have characterized the government’s search as “unprecedented and unnecessary.” They have asked Cannon to appoint a special master “To Protect (Trump’s) Constitutional Rights,” accusing the government of violating the former president’s right to be protected against unreasonable searches and seizures and questioning whether the search was politically motivated.
On Monday, government officials said in a court filing that a team of law enforcement officials separate from those who searched most of Mar-a-Lago, dubbed the “Privilege Review Team,” had completed a review of seized documents and found “a limited set of materials that potentially contain attorney-client privileged information.” Under a process outlined in a redacted affidavit unsealed last week, the documents are next set to be reviewed by an attorney to determine next steps.
In the affidavit, authorities said they had reason to believe that sensitive documents containing information concerning the national defense were being improperly stored at Mar-a-Lago.
Trump has criticized the search of his Florida estate, calling it a “break-in” and an “FBI/DOJ Raid” on social media.
“This assault was done for political purposes just prior to the Midterm Elections (and 2024, of course!),” he wrote on Saturday. “It is a disgrace to our now Third World Nation!”
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