Former President Donald Trump tried to claim executive privilege over some “personal” records that the FBI found at Mar-a-Lago, but he “cannot logically” do that, the Department of Justice said on Thursday.
“Only official records are subject to assertions of Executive Privilege,” prosecutors wrote in a filing apprising a court-appointed special master about the disputes.
Since the FBI seized classified and other documents from Mar-a-Lago, Trump has made expansive claims in public about executive privilege. A letter to Senior U.S. District Judge Raymond Dearie, the special master presiding over the review of the documents, reveals that Trump only claimed executive privilege over four documents in a batch of 15 currently at issue. The Justice Department disputes all of Trump’s assertions, but it called claiming executive privilege over the two that the parties agree to be personal documents is particularly illogical.
The records referenced in the Thursday filing are a subset of materials known as “Filter A” documents. Those documents obtained their name after being washed through an internal DOJ filter team. Another set of documents is known as “Filter B” material. The separate tranches were set aside by a privilege review team within the DOJ that operates separately from the actual “case team” that is investigating whether any crimes occurred surrounding the documents. Not all of the material seized at Mar-a-Lago was separated because no privilege or Presidential Records Act assertions apply to it.
Portions of a few of the documents were withheld from the case team because Trump asserted another type of privilege — attorney-client privilege and work product immunity — over a few pages of the material in question.
According to previous filings, the “Filter A” materials include items such as a draft immigration initiative, a letter to Robert Mueller, documents surrounding Rod Blagojevich’s clemency petition, letters from the National Archives and Records Administration, and document which contains “handwritten names, numbers and notes” involving “The President’s Calls,” including a so-called “Message from Rudy.” A total of 21 items are contained within the “Filter A” set of documents. The statuses of several of those papers were previously agreed upon or settled by the parties.
The Thursday letter details the remaining 15 of those 21 documents and adds that four more are entirely undisputed between Trump and the government.
Personal or Presidential Records
Of the 15 items discussed, the letter says disputes remain as to whether nine documents are “personal” or “presidential” under the Presidential Records Act.
“The nine documents are Presidential records because they are ‘ documentary material . . .  created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President . . .  in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President,'” the DOJ asserted while citing the relevant elements of the legal test employed to ferret out that determination.
Specifically, “[s]ix of the nine documents (2, 3, 7, 8, 12, 13), are clemency requests with supporting materials and relate to the President’s ‘Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment,'” the DOJ noted while citing the U.S. Constitution. “Those requests were received by Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity.”
Two of the remaining documents “relate to immigration initiatives and the President’s powers under the Immigration and Nationality Act and other laws governing immigration and border control,” the DOJ asserted.
The final remaining document “is a printed e-mail message from a person at one of the military academies addressed to the President in his official capacity about the academy’s sports program and its relationship to martial spirit,” the DOJ said. “The message relates at a minimum to the ‘ceremonial duties of the President'” and is therefore presidential and not personal, the DOJ asserted.
An additional four documents remain disputed as to Trump’s assertion of a novel form of executive privilege.
The letter explains:
Plaintiff [Trump] asserts Executive Privilege over four documents (1, 6, 15, and 16). In his log entries, Plaintiff claims that documents 1 and 6 are pre-decisional and invokes a deliberative-process component of Executive Privilege. Plaintiff claims that documents 15 and 16 record communications between the President and his advisors and for those documents appears to invoke the Presidential communications component of Executive Privilege.
The DOJ said Trump’s arguments were incorrect for four distinct reasons.
First, prosecutors said that Trump is trying to claim executive privilege over a few documents he claims are personal (not presidential) records — a position the DOJ said was internally inconsistent: “Only official records are subject to assertions of Executive Privilege.”
Second, prosecutors said the now-former president simply cannot “assert the deliberative-process component of Executive Privilege.”
Third, prosecutors said Trump cannot assert executive privilege against a subsequent administration because the privilege belongs to the branch of government and not to the individual president.
Fourth, prosecutors said the DOJ has a “demonstrated, specific need” for the evidence due to an “ongoing criminal investigation.” A “demonstrated, specific need” for evidence creates an exception to executive privilege as elucidated in United States v. Nixon, a 1974 U.S. Supreme Court case.
Special Master Evaluation
Dearie, a Senior U.S. District Judge, must eventually mediate these disputes and issue recommended rulings as to each particular document in question. He had asked for recurring updates so that he is not deluged with material starting on Nov. 12, when his review of the disputes is scheduled to commence in earnest.
Dearie was appointed by U.S. District Judge Aileen M. Cannon to evaluate the dispute. Trump sued the U.S. Government in a proceeding separate from its search warrant application before a U.S. magistrate judge; the former president claimed a political vendetta led to the FBI search of Mar-a-Lago on Aug. 8. Trump’s position as a former president and potential 2024 presidential candidate created extraordinary circumstances, his attorneys argued, and thus warranted a special master review. Cannon agreed and appointed Dearie to help ascertain whether some of the seized documents were actually classified or privileged.
Why it Matters
The DOJ explained in an unnumbered footnote why some of these disputes matter to the big picture analysis of what occurred at Mar-a-Lago.
“[T]he fact that more than 100 documents bearing classification markings were commingled with unclassified and even personal records is important evidence in the government’s investigation in this case,” prosecutors wrote.
Along with most legal experts, the Justice Department sharply disputes that a private citizen who is a former president can claim executive privilege over an arm of the existing executive branch.
“[E]ven if Plaintiff were permitted to assert executive privilege against the Executive Branch, that assertion would fail here because the government has a ‘demonstrated, specific need’ for this evidence in its ongoing criminal investigation,” the DOJ’s filing states, citing and quoting case law.
The DOJ has said that its probe centers around the Espionage Act, obstruction of justice, and and concealment and removal of government records. In one past filing, the DOJ said the matter was a “criminal investigation with direct implications for national security.”
The Thursday letter referenced in this report is available here.
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