(Bloomberg) — Former President Donald Trump is trying to have it both ways by arguing that classified documents seized from his Mar-a-Lago home are personal property but also covered by executive privilege, the Justice Department said.
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In a Tuesday court filing, the government took on Trump’s claims that the Presidential Records Act gives him broad discretion to decide that White House documents are personal and therefore not covered by the law. The Justice Department said that clashed with his claim that those documents are also protected by the executive privilege afforded presidents.
“If Plaintiff truly means to suggest that, while president, he chose to categorize records with markings such as ‘SECRET’ and ‘TOP SECRET’ as his personal records for purposes of the PRA, then he cannot assert that the very same records are protected by executive privilege — i.e., that they are ‘presidential communications’ made in furtherance of the ‘performance of his official duties,’” the Justice Department said.
The government’s filing was in support of its request that US District Judge Aileen Cannon in West Palm Beach, Florida, exclude about 100 classified documents from her order halting the Justice Department from using the thousands of records seized by the FBI at Mar-a-Lago while a so-called special master reviews them for privilege issues.
Trump’s lawyers filed an opposition to the request on Monday, citing both the PRA and executive privilege. They also suggested that Trump may have declassified the documents though stopped short of saying that he did.
The Justice Department sharply criticized the uncertainty of Trump’s supposed declassification in its Tuesday filing.
“Plaintiff has now filed multiple lengthy submissions with the Court that stop short of asserting that he in fact took any of these actions with respect to any of the seized records, including those at issue in the stay motion,” the government said.
“In light of the classification markings, official cover sheets, and other indicia of classification attendant to these materials,” prosecutors said in the filing, “such possibilities should not be given weight absent Plaintiff’s putting forward competent evidence.”
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