- The Washington Times - Monday, September 12, 2022

Attorneys for former President Donald Trump filed court documents on Monday seeking to stop the Justice Department from resuming its review of classified materials seized from his Mar-a-Lago residence, arguing that the documents taken by FBI investigators during the Aug. 8 raid are not classified and that his South Florida estate is secure.

The filing in a South Florida federal court was in response to the Justice Department’s request to continue its review of the seized materials to determine what was classified and to assess whether any mishandling compromised national security.

It was one of three court filings by both sides Monday, and in another, the Justice Department also said it would support one of Mr. Trump’s special master nominees to review documents seized in the search.

Mr. Trump’s attorneys say the investigation is nothing more than an overreaction about the security of Mar-a-Lago.

“In what at its core is a document storage dispute that has spiraled out of control, the government wrongfully seeks to criminalize the possession by the 45th president of his own presidential and personal records,” Mr. Trump’s attorneys wrote.

They said it was Justice Department prosecutors who deemed the seized materials “classified records,” raising questions about the foundation of the government’s criminal investigation of Mr. Trump.

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Mr. Trump’s attorneys fired back against the Justice Department’s claims that his storage of the materials was a national security risk. They insisted that U.S. adversaries could not access the documents.

They argued that Mar-a-Lago is a “secure, controlled access compound utilized regularly to conduct the official business of the United States during the Trump presidency.” They said the Secret Service monitors the residence and that the documents were stored in a locked room.

“The government generally points to the alleged urgent need to conduct a risk assessment of possible unauthorized disclosure of purported ‘classified records.’ But there is no indication any purported ‘classified records’ were disclosed to anyone,” Mr. Trump’s attorneys wrote.

Legal analysts say arguments about Mar-a-Lago’s security protocols won’t convince a federal judge.

Jonathan Turley, a professor of constitutional law at George Washington University, said the Trump team’s argument doesn’t address the government’s claims that all documents had to be turned over at the end of Mr. Trump’s presidency and that his legal team insisted that no classified materials remained at Mar-a-Lago after the subpoena was issued.

“The security of the room is not a defense to the underlying charges if the president was not entitled to have the documents and knowingly failed to produce them,” Mr. Turley said. He added that the argument would work only to mitigate a potential criminal penalty.

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Kendall Coffey, a former U.S. attorney in Miami, said the Trump team’s filing was more for the public than the federal judge overseeing the case.

“They’ve seen things in the press that suggest Mar-a-Lago was loose and they thought they needed to address that and remind them that the Secret Service is involved,” he said. “In all of these filings, there has been an eye towards the court of public opinion, and that’s true of the Justice Department as well.”

The arguments raised by Mr. Trump’s attorneys parallel claims of former Secretary of State Hillary Clinton, who faced scrutiny for using a private email server for work correspondence.

Critics said materials sent through the server would be vulnerable to hackers. An FBI review found that of the tens of thousands of emails stored on Mrs. Clinton’s private server, 113 contained classified information, but many were not marked as such and others were not marked clearly.

Much like Mr. Trump’s attorneys, Mrs. Clinton was adamant that the security of her server was not breached and protections she put into place proved to be “effective and secure.”

“The system … had numerous safeguards,” she said at a 2015 press conference. “It was on property guarded by the Secret Service, and there were no security breaches. So I think that the use of that server … certainly proved to be effective and secure.”

Mr. Coffey said emphasizing security levels is the go-to defense for anyone accused of mishandling classified government documents.

“It is a common denominator because, had there been an improper disclosure to a foreign agent, that would completely revise the equation in terms of the potential for charges,” he said. “A harmless but the incorrect location of documents is a very different matter from one where the security of the U.S. has been harmed.”

Mr. Trump’s filing Monday was in response to the Justice Department’s announcement that it would appeal U.S. District Judge Aileen M. Cannon’s ruling that approved a special master — a neutral third party tasked with reviewing the thousands of documents seized by the FBI — to determine whether they should be returned to Mr. Trump.

Judge Cannon also ordered the Justice Department to halt its use of seized documents for its criminal probe of Mr. Trump for suspected violations of federal laws related to the mishandling of government documents.

She did allow the intelligence community to continue its assessment of potential damage caused by suspected mishandling of sensitive government secrets.

The Justice Department has argued that the criminal investigation of Mr. Trump is intertwined with the intelligence community’s review and had to be paused. It has vowed to appeal Judge Cannon’s ruling to a higher court if she doesn’t allow the intelligence review to continue.

Mr. Trump’s legal team insisted that the former president “enjoys absolute authority” to declassify information and argued that there is “no legitimate contention” that a president’s declassification of documents “requires approval of bureaucratic components.”

“The government’s stance assumes that if a document has a classification marking, it remains classified irrespective of any actions taken during President Trump’s term in office,” Mr. Trump’s attorneys wrote.

They said, at best, the documents should be returned to the National Archives and Records Administration, but should not remain with the Justice Department.

The Justice Department and Mr. Trump had been tangling over who should be named a special master, but the government late Monday said it would back one of his picks for the job. Prosecutors asked the court to consider appointing Mr. Trump’s candidate, Raymond Dearie, a retired U.S. District Judge for the Eastern District of New York, who was nominated to the bench by President Reagan.

The Justice Department also asked Judge Cannon to appoint Mr. Dearie along with its two picks, retired Judge Barbara S. Jones, who acted as a special master in an investigation of former Trump attorney Rudolph W. Giuliani, and Thomas B. Griffith, a retired appeals judge for the District of Columbia Circuit.

Prosecutors said all three have “substantial experience” in federal criminal and civil cases, including cases involving national security concerns.

It is unclear when Judge Cannon will decide who should serve as special master.

The Justice Department has proposed retired Judge Barbara S. Jones, who acted as a special master in an investigation of former Trump attorney Rudolph W. Giuliani, or Thomas B. Griffith, a retired appeals judge for the District of Columbia Circuit.

In a separate filing, Mr. Trump’s attorneys said the Justice Department’s proposed special master candidates are “not suitable” for the job, but they didn’t explain why.

“Plaintiff objects to the proposed nominees of the Department of Justice. Plaintiff believes there are specific reasons why those nominees are not preferred for service as special master in this case,” the Trump attorneys wrote.

The lawyers said Judge Cannon did not ask for detailed reasoning about their objections, but they said they would provide it if she requested. 

Mr. Trump’s attorneys also suggested Paul Huck Jr., a former Florida deputy attorney general, to serve as special master.

In their main filing, Mr. Trump’s attorneys reiterated the need for a special master.

“President Trump (and, by extension, a requested special master) cannot be denied access to those documents,” they wrote.

• Jeff Mordock can be reached at jmordock@washingtontimes.com.

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