Justice Department accuses Trump of playing "shell game" in records dispute

Washington — Justice Department lawyers accused former President Donald Trump and his legal team of engaging in a "shell game" in the ongoing dispute over records the former president brought with him from the White House to his South Florida residence at the end of his administration.

In a filing with the independent arbiter appointed to review the documents seized by the FBI during its Aug. 8 search at Mar-a-Lago, which was unsealed Monday, federal prosecutors argued the former president wrongly contended that the materials he kept were "personal" and therefore did not have to be turned over to the National Archives and Records Administration at the end of his presidency in January 2021.

"Seeming to recognize that a document cannot both be a 'personal' record and be shielded by executive privilege, [Trump] has indicated that he asserts executive privilege only if the special master rejects his assertion that a document is a 'personal' record and determines that is a presidential record," the Justice Department wrote. "That is a shell game, and the special master should not indulge it."

The special master is the third-party reviewer who is sifting through the more than 11,000 documents taken by federal investigators from Mar-a-Lago and separating those that may be covered by claims of executive privilege or attorney-client privilege. The U.S. district judge presiding over the ongoing court fight over the seized records, Aileen Cannon, named longtime federal Judge Raymond Dearie as special master in September.

In its filing to Dearie, which outlined five "global issues" concerning executive privilege and the designation of some documents as "personal," the Justice Department wrote Trump cannot contend that a document is private under federal records law "while simultaneously claiming, as a backup, that it reflects confidential executive communications."

"At the very least, this type of gamesmanship should detract substantially from the weight of plaintiff's executive privilege claims," they wrote of Trump.

The Presidential Records Act (PRA), the law governing the preservation and ownership of presidential records, allows presidents to declare some records as personal, and those materials do not have to be preserved and turned over to the Archives as required under the law. 

The government noted that the PRA defines personal records as those "of a purely private or non-public character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the president."

Federal prosecutors said the former president asserted attorney-client privilege over one document out of 2,916 that Trump is attempting to shield from investigators, and asserted executive privilege as his principal basis for withholding 16 documents. 

Investigators are looking into whether Trump or those around him mishandled documents with classified markings during the 2021 presidential transition, an investigation that involved the execution of a search warrant at Trump's Florida residence. 

At issue in the current dispute is whether most of the seized material — those documents that do not have classification markings — are subject to any type of protection and should be kept from investigators. Despite first being barred by Cannon from using the documents with classified markings in the ongoing investigation, a federal appeals court ruled prosecutors should be allowed to use the 103 sensitive documents in the probe. 

Prosecutors argued in their recently unsealed filing that the small proportion of documents over which there is disagreement between the parties warrants the removal of Cannon's restrictions on the investigation.  

But Trump's team has argued the materials seized at the former president's residence are both his own, personal — as opposed to presidential — records and are subject to executive privilege. 

Trump "was still serving his term in office when the documents at issue were packed, transported, and delivered to his residence in Palm Beach, Florida," his legal team wrote in a filing, arguing his decision to remove the documents from the White House make them "presumptively personal" in nature and not subject to any criminal statute. 

The former president "treated" the documents as personal, his team argued, and so their official designation as presidential records was no longer valid. And if Dearie were to reject this assertion, Trump's team argues the special master should still find that some of the documents were restricted under executive privilege claims and shield them from criminal investigators. 

Trump and his lawyers have used as the basis for their argument a 2012 decision from the federal district court in Washington in a dispute between the conservative nonprofit Judicial Watch and the Archives over audiotapes created by former President Bill Clinton and a historian during his administration, which Clinton stored in his sock drawer. Judicial Watch asked the court to declare the tapes "presidential records," but U.S. District Judge Amy Berman Jackson dismissed the case, finding the Archives did not have the authority to designate materials as "presidential records."

"The PRA, then, is clear: a president determines whether a document constitutes a presidential record or a personal record," his legal team wrote. "In this instance, President Trump exercised that authority."

But Justice Department lawyers warned that accepting Trump's argument that he can unilaterally deem the contested records to be "personal" would "nullify the statute's entire purpose by allowing a president to designate all of his official records as 'personal' records and then to remove them upon departure from the White House."

"It would reduce the [Presidential Records Act's] detailed definitions of 'presidential record' and 'personal records' to mere suggestions," prosecutors told Dearie.

Reiterating that they are in the midst of a criminal investigation into the unlawful retention of documents and allegations of obstructing the probe, prosecutors argued, "Law enforcement officials conduct judicially authorized searches to seize evidence of crimes." 

They wrote: "Nothing in the law prohibits the government from using documents recovered in a search if they are 'personal,' and [Trump] offers no authority suggesting otherwise." 

In a separate letter to Dearie, the government lawyers revealed that Trump may have commingled sensitive government documents with personal belongings from after he left office. 

According to the government's filing, two documents with classified marking cover sheets – one labeled SECRET and another marked CONFIDENTIAL – were allegedly mixed with three personal communications that "are either dated or by content occurred after plaintiff's administration ended." These communications were from a religious leader, an author, and a pollster, prosecutors wrote. 

"Because plaintiff can only have received the documents bearing classification markings in his capacity as president, the entire mixed document is a presidential record," top Justice Department officials, including Matthew Olsen, assistant attorney general for national security, and Jay Bratt, counterintelligence chief, argued.

The Justice Department had in an earlier filing told the court that three records bearing classification markings were found in a desk located in Trump's office at Mar-a-Lago and subsequently taken by the FBI in its Aug. 8 search of the premises. And a detailed inventory of the seized materials released earlier this year indicated documents with classified markings might have been intermingled with articles of clothing, news clippings, and books. 

The federal probe into Trump's handling of sensitive documents has further escalated since the execution of the search warrant in August. A Mar-a-Lago employee seen on security camera footage moving boxes at the resort  told investigators that the former president directed him to move the boxes to a different location as the federal investigation was underway, according to an individual familiar with the investigation. 

That employee — Walt Nauta — as well as Trump associate Kash Patel have become witnesses in the probe, testifying before a grand jury in Washington, D.C.  A spokesperson for Patel said last week, "his testimony was compelled over his objection through the only legal means available to the government — a grant of limited immunity."