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DOJ Blasts Trump’s Declassification Theories and Executive Privilege Claims at Supreme Court, Asks Justices to Turn Down Mar-a-Lago Case

A photo shows Donald Trump looking apprehensively.

Former U.S. President Donald Trump looks on during a campaign rally at Minden-Tahoe Airport on Oct. 8, 2022 in Minden, Nevada. (Photo by Justin Sullivan/Getty Images.)

The U.S. Department of Justice has asked the U.S. Supreme Court to stand down as it ponders criminal charges connected to alleged secret and classified documents recovered in August from Donald Trump’s Mar-a-Lago home and resort. While so doing, the DOJ slammed Trump’s multiple public claims that he declassified some of the material in question.

In paperwork filed Tuesday afternoon by Solicitor General Elizabeth Prelogar, the DOJ asserted that the government — namely, the Executive Branch — must have the “broad discretion” to “determine who may have access to” classified information and that Trump has no personal property interest in government documents seized from his palatial Palm Beach compound on Aug. 8.

The DOJ’s filing acknowledged the twisted path of the case was a gross deviation from the usual course of most criminal investigations.

The document was a response to a Trump request to Justice Clarence Thomas to vacate a partial stay issued by the 11th Circuit Court of Appeals. The 11th Circuit’s partial stay blocked portions of a lower district court’s order that paused the DOJ’s criminal review of the seized material and appointed a special master to examine whether any of the material was privileged.

The DOJ’s criminal review resumed after the 11th Circuit’s partial stay went into effect. Trump asked Justice Thomas, who is the justice who handles incoming petitions from the 11th Circuit Court of Appeals where Mar-a-Lago is located, to vacate part of the partial stay. The DOJ characterized Trump’s request surrounding the limited stay as follows:

In this Court, applicant [Trump] does not challenge the stay insofar as it reinstates the government’s authority to use the documents bearing classification markings in its ongoing criminal investigation. Applicant instead seeks to partially vacate the stay to the extent it precludes dissemination and review of those documents in the special-master proceedings. Applicant is not entitled to that relief for multiple independent reasons.

Trump’s attorneys had previously complained that the 11th Circuit torpedoed portions of the lower court’s highly favorable order despite not having jurisdiction to do so. While airing that grievance, Trump’s attorneys also balked that the DOJ was treating the ex-president “quite different from the deference and collegiality” extended to former presidents George W. Bush and Barack Obama when records were transported and stored after transitions of power. Trump’s attorneys even suggested that federal prosecutors were trying to “pin some offense on him” through a scurrilous charade of “political judicial theater.”

The DOJ responded to those claims on Tuesday afternoon by reasserting an oft-repeated argument: that Trump cannot ban the executive branch from reviewing materials compiled and held by a former executive.

Trump has long asserted that the materials seized from Mar-a-Lago could be covered by various forms of privilege, such as attorney-client privilege or executive privilege.  The latter assertion, the DOJ says, is impossible. That’s because executive privilege generally applies when the president seeks to block another branch of government, such as the legislative branch, viz. Congress, from reviewing its papers. In other words, the privilege, according to the DOJ, is held by the branch of government and not by the particular occupant who from time to time sits behind the Resolute Desk. Therefore, Trump can’t use executive privilege to prevent the DOJ, an executive branch agency, from recovering classified or secret material as part of a criminal probe that involves a prior executive.

From the DOJ’s filing, at length:

This application concerns an unprecedented order by the district court restricting the Executive Branch’s use of its own highly classified records in an ongoing criminal investigation and directing the dissemination of those records outside the Executive Branch for a special-master review. In August 2022, the government obtained a warrant to search the residence of applicant, former President Donald J. Trump, based on a judicial finding of probable cause to believe that the search would reveal evidence of crimes, including wrongful retention of documents and information relating to the national defense as well as obstruction of justice. Among other evidence, the search recovered roughly 100 records bearing classification markings, including markings reflecting the highest levels of classification and extremely restricted distribution.

The DOJ then bemoaned the appointment of the special master — Senior U.S. District Judge Raymond Dearie of the Eastern District of New York — to look over the case and to ferret out those concerns about privilege. Trump’s attorneys seem highly interested in blocking the materials segregated off for Dearie’s review from being forked over to the government.

U.S. District Judge Aileen M. Cannon fielded Trump’s lawsuit against the government after the warrant was executed and the documents were seized. Cannon “fundamentally erred” by appointing Dearie at this stage in the proceeding and by staying the DOJ’s criminal review of the material, the DOJ told the high court:

Two weeks later, applicant filed this civil action seeking the appointment of a special master to review the seized materials for claims of privilege or return of property and an injunction barring the government from continuing to use those materials during that review process. District courts have no general equitable authority to superintend federal criminal investigations; instead, challenges to the government’s use of the evidence recovered in a search are ordinarily resolved through criminal motions practice if and when charges are filed. Here, however, the district court granted the extraordinary relief applicant sought, ordering that a “special master shall be APPOINTED to review the seized property” and enjoining further review or use of any seized materials “for criminal investigative purposes” pending the special-master process, which will last months.

The DOJ immediately appealed appeal sought only to stay a portion of Cannon’s orders; the 11th Circuit agreed, as noted above, and allowed the DOJ’s criminal probe to continue.  A broader appeal of Cannon’s overall order is also pending, Tuesday’s filing notes.

The reason why the Supreme Court should not intervene, the DOJ said, was several-fold.

“Most notably, applicant has not even attempted to explain how he is irreparably injured by the court of appeals’ partial stay, which simply prevents disclosure of the documents bearing classification markings in the special-master review during the pendency of the government’s expedited appeal,” the DOJ wrote. “Applicant’s inability to demonstrate irreparable injury is itself sufficient reason to deny the extraordinary relief he seeks in this Court.”

Rather, it would be the government that is irreparably injured, the DOJ wrote — echoing a conclusion by the 11th Circuit while staying Judge Cannon’s initial order. The reason, the DOJ argued while quoting case law, was because  “the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.”

“The district court appointed the special master to review claims of privilege and for the return of personal property,” the DOJ continued, “but applicant has no plausible claim of privilege in or ownership of government records bearing classification markings. As the court of appeals recognized, applicant thus has no basis to demand special-master review of those records. Applicant does not acknowledge, much less attempt to rebut, the court’s careful analysis of those issues.”

Additionally, the reply brief attempts to settle a longstanding dispute between Trump and the government.  The government has asserted that the records in question are part of a criminal investigation under the Espionage Act; Trump’s attorneys have sought to use the Presidential Records Act (PRA) as a shield against the government’s criminal probe. The DOJ says the PRA does not afford Trump the protection he both claims and seeks:

The PRA provides that the United States retains “complete ownership, possession, and control of Presidential records,” 44 U.S.C. 2202, which the law defines to include all records “created or received by the President” or his staff “in the course of conducting activities which relate to or have an effect upon” the President’s official duties, 44 U.S.C. 2201(2). The PRA specifies that when a President leaves office, NARA [the National Archives and Records Administration] “shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” 44 U.S.C. 2203(g)(1).

NARA suspected that Trump had not turned over the records to which it believed it was entitled when Trump left office. NARA requested the material in question; Trump’s staff returned some of it in a fashion the DOJ described as indicative of a belief that it was still classified.

Trump’s attorneys asserted that no additional secrets were still housed at Mar-a-Lago, but the government was not convinced, and a grand jury subpoena ensued. A search warrant was then issued and executed on Aug. 8.

“The FBI uncovered evidence that the response to the grand jury subpoena was incomplete, that additional classified documents likely remained at Mar-a-Lago, and that efforts had likely been undertaken to obstruct the investigation,” the DOJ noted. “The government executed the warrant on August 8, 2022. The search recovered more than 11,000 documents from the storage room and applicant’s private office, roughly 100 of which bore classification markings, with some indicating the highest levels of classification and extremely restricted distribution.”

The DOJ then took another shot at Trump’s PRA defense.

“Applicant’s reliance on the PRA is misguided because he did not comply with his PRA obligation to deposit the records at issue with NARA in the first place,” the DOJ quipped (citations omitted).  “As a result, the Archivist does not have custody of those records, and the PRA’s procedures do not apply to them. Even were that not so, any dispute over access to presidential records under the PRA must be resolved in the District of Columbia, not the Southern District of Florida. If applicant truly believes that this suit is ‘governed by the PRA,’ he has filed it in the wrong court — which would be yet another reason the government is likely to succeed on the merits here.”

Additionally, there’s the issue of declassification. Trump has claimed in various statements and interviews, including with Fox News opinion host Sean Hannity, that (1) he did declassify the material, and (2) he could have done so merely “by thinking about it.”

The DOJ responded accordingly (again, most citations omitted):

As for applicant’s former authority to declassify documents: Despite asserting that classification status “is at the core of the dispute” in this case, applicant has never represented in any of his multiple legal filings in multiple courts that he in fact declassified any documents — much less supported such a representation with competent evidence. Indeed, the court of appeals observed that “before the special master, [applicant] resisted providing any evidence that he had declassified any of these documents” and that “the record contains no evidence that any of these records were declassified.” And in any event, any such declassification would be irrelevant to the special master’s review for claims of privilege and for the return of property. As the government has explained, the classification markings establish on the face of the documents that they are not applicant’s personal property, and the documents likewise cannot contain information subject to a personal attorney-client privilege since they are necessarily governmental records, see Exec. Order No. 13,526, § 1.2(1), 75 Fed. Reg. at 707.7. Thus, as the court of appeals emphasized, applicant’s “declassification argument” is a “red herring” because “declassifying an official document would not change its content or render it personal.”

The executive order cited dates back to the Obama Administration and has been in force since then.

The DOJ continued in a footnote (yet again, some citations to the record are omitted):

In the district court, applicant suggested that some of the seized records might be subject to executive privilege. But applicant all but abandoned that argument in the court of appeals, and the application does not even mention it. With good reason: Applicant has identified no authority for the suggestion that he could invoke executive privilege to prevent review of Executive Branch records by “the very Executive Branch in whose name the privilege is invoked,” Nixon v. Administrator of General Services, 433 U.S. 425, 447-448 (1977). And in any event, any such invocation would necessarily yield to the government’s “demonstrated, specific need for evidence” in its criminal investigation concerning the wrongful retention of those very documents and obstruction of its efforts to recover them. United States v. Nixon, 418 U.S. 683, 713 (1974).

The DOJ asked the Supreme Court to deny Trump’s application.

The full DOJ reply is available here.

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.