WASHINGTON — Attorneys for former President Donald Trump asked a judge Monday to continue blocking the Justice Department from reviewing classified documents seized from Trump’s Mar-a-Lago residence.
US District Judge Aileen Cannon last week temporarily blocked the DOJ from using the records seized on August 8 when the FBI searched Trump’s home until an expert could review them. The DOJ challenged her order later in the week.
In a court filing Monday that called the Justice Department’s investigation into the former president “unprecedented and misguided,” Trump’s lawyers argued that “there is still a dispute over the classification status” of documents that were marked classified. While Trump and his associates have claimed in the media that Trump, while president, declassified various documents, his lawyers have not specifically made that claim.
The legal battle is over the government’s investigation into how hundreds of pages of classified government records continued to be kept at Mar-a-Lago, even after a Trump lawyer certified in June that there were no other classified records at the estate. Cannon, a Trump appointee, granted Trump’s request for a special master on Sept. 5 and temporarily blocked the administration from using classified records as part of its investigation.
Cannon said the national security review of the records could continue, but the Justice Department said it was complicated because the FBI is part of the intelligence community and “the review and the classification assessment are closely related to — and cannot be easily separated from by – areas investigation into the ongoing criminal investigation by the DOJ and the FBI.”
Legal experts called Cannon’s ruling deeply flawed, and the Justice Department argued that barring the executive branch from examining classified records belonging to the executive branch would cause “immediate and serious harm to the government and the public.”
The Justice Department last week told the court it would appeal its decision and asked Cannon to uphold its ruling on the classified documents, meaning the government could move forward with actions based on the classified records before weighing an expert.
But Trump’s lawyers said such a stay “would prejudge the outcome, at least with respect to what he considers to be “classified records”” and wrote that “there is no indication that any alleged “classified records” were disclosed to anyone.” The filing also said that, under the Presidential Records Act, the former president “has an unlimited right of access to his presidential records, even though he may not ‘own’ them.” They considered the dispute over Trump’s retention of at least 11,000 pages of government documents a “civil matter” governed by the Records Act.
The administration, Trump’s team argued, was trying to block a “sensible first step toward restoring order out of chaos and increasing public confidence in the integrity of the process.” He said that, unlike most criminal investigations, this investigation required public transparency every step of the way.
“As this Court has rightly observed, a criminal investigation of this importance—an investigation of a former President of the United States by the government of his political opponent—requires heightened vigilance to ensure fairness, transparency, and the maintenance of public trust. . The file signed by attorney Christopher Kise was read. “Given the importance of this investigation, the Court recognizes, as does President Trump, that it must be conducted in public.”
Both the Justice Department and Trump’s team have nominated two candidates to serve as special master. The Trump team said in a separate filing Monday that it opposed both Justice Department nominees, but did not want to specify the reasons for its opposition on the public record.
The Justice Department on Monday urged the court to choose one of two proposed nominees — retired judges Barbara S. Jones or Thomas B. Griffith — or Raymond J. Dearie, a judge for the U.S. District Court for the Eastern District of New York. a candidate suggested by Trump’s legal team.
“Judges Jones, Griffith and Dearie each have significant judicial experience, during which they have presided over federal criminal and civil cases, including federal cases involving national security and privilege issues,” wrote U.S. Attorney Juan Antonio Gonzalez and Jay Bratt, the spokesman for the Department of Justice. chief of counterintelligence and export control. They said the Justice Department objected to the Trump adviser’s recommendation of Paul Hack Jr., arguing that he “doesn’t appear to have similar experience.”
Many legal experts agree there is a very strong case against Trump, though they say the question of whether the former president will actually be charged is difficult.
John Yu, a former George W. Bush-era Justice Department official who helped write the “torture guidelines” for interrogation techniques after the 9/11 attacks and whose views on executive power argued that the president could ordered the slaughter of a village, said Trump’s actions were clearly against the law.
“Trump is not allowed to have the records and keep them. He could get copies. But he can’t keep them out of the Archives. That’s settled,” Yu said in an interview at the National Conservatism Conference. “It’s not whether Trump broke the law. He did. It’s not whether the government had legal grounds for the search warrant. It does. The question really is whether he could be charged.”
“The real issue, and I think both people on both sides should recognize this, is, is it a good use of prosecutorial discretion — judgment — to charge him?” Yoo said. “So my point was if you’re going to go after a president for the first time in American history for breaking the law, I think it should be for something much more important than that. Like, for example, getting involved with the January 6th conspiracy.”
Trump’s latest filing for the first time addresses what has been dubbed the “Clinton sock case,” a 2012 ruling about the power of a former president — in this case, Bill Clinton — to unilaterally decide what is a private record and what Presidential Records Act Document in his post-presidency.
The case was brought by the conservative group Judicial Watch — which sought to force Clinton to turn over tapes made during his presidency that were, according to a 2007 CBS report, stored in a sock drawer. Judge Amy Berman Jackson, appointed by President Barack Obama, ruled that Clinton did not have to turn them over because they were personal records.
But unmentioned by Trump’s defenders who began raising the issue of the sock drawer last month is that the Jackson decision specifically states that the Presidential Records Act distinguishes presidential records from “personal records.” which are defined as documents that are “purely private or non-public in nature. “
This article was originally published on NBCNews.com