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Trump Accuses DOJ of Giving ‘Not Fully Accurate’ Executive Privilege Logs to Special Master in Mar-a-Lago Document Dispute

A photo shows Donald Trump pointing.

Former President Donald Trump gestures to the crowd as he prepares to speak a campaign rally for Republican candidates on October 9, 2022 in Mesa, Arizona. (Photo by Mario Tama/Getty Images.)

Attorneys for former President Donald Trump have accused the U.S. Department of Justice of filing “not fully accurate” descriptions of a dispute over documents seized from Mar-a-Lago.

Trump’s late Thursday filing followed a DOJ document submitted to Senior U.S. District Judge Raymond Dearie, the independent special master tapped to mediate Trump’s spat with the DOJ and to issue recommended rulings in it. The DOJ said Trump was bizarrely attempting to claim executive privilege over documents Trump considered “personal” in nature — which the DOJ said was something Trump “cannot logically” do.

“Only official records are subject to assertions of Executive Privilege,” federal prosecutors wrote earlier on Thursday in an attempt to distinguish between personal records and presidential records — which is one area of dispute under the Presidential Records Act.

The second area of dispute, according to the DOJ’s letter, is whether the documents that are presidential in nature are governed by some form of executive privilege. The DOJ has long asserted — and indeed reasserted on Thursday — that Trump cannot claim executive privilege against the current executive branch itself. The privilege, according to the DOJ, is held by the branch of government, not by the individual who is elected president.

Trump attorney James M. Trusty responded later in the day by acknowledging that his team and the DOJ “met and conferred” to discuss the material in question on Oct. 19 and suggested that the DOJ had somewhat blindsided him.

“Up until receipt of the Defendant’s October 20, 2022 filing, we anticipated that there would be a joint submission and an exchange between the parties preceding that joint submission to confirm both parties’ positions,” Trusty wrote. “This is consistent with the process that was undertaken for the October 3, 2022 joint submission with the Filter Team. Instead, the government filed its own log and presented its legal positions on the documents for which there is dispute between the parties.”

“Unfortunately, the log submitted by the government is not fully accurate as to the Plaintiff’s position on various documents,” Trusty added.

“In light of these facts, the Plaintiff will file our position on the documents that remain in dispute by the close of business on October 24, 2022,” he continued.

The assertion that the DOJ’s description was “not fully accurate” was not immediately backed up with specific references — but, as noted, more is promised on Monday.

Federal agents seized a cache of material from Trump’s Mar-a-Lago home and resort club on Aug. 8. The DOJ asserted that some of the material was classified and secret — to varying degrees of severity.

Top secret documents recovered from Mar-a-Lago appear in an evidence photo.

Federal prosecutors say FBI agents seized these materials from Mar-a-Lago. The contents of the documents were redacted with white squares. (Image via an Aug. 31, 2022 federal court filing.)

Since the Aug. 8 seizure, the material has been divided several times. The specific documents in question are part of a subset of materials called “Filter A” materials — so named because they were divided off for review by an internal DOJ team that is separate from the “case team” that is investigating whether any criminal laws were violated when the documents were taken from the White House to Florida and kept at Mar-a-Lago after the National Archives and Records Administration asked for them to be returned.

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.  Fifteen documents are cited in the DOJ’s letter, and 11 of those remain in dispute, according to the DOJ’s letter.

The bulk of the disputes are over whether the material is personal or presidential in nature. The DOJ said Trump cannot claim documents involving pardon requests or inherently presidential acts are personal.

The DOJ asserted in its earlier Thursday filing that the Mar-a-Lago matter involved an “ongoing criminal investigation.” In one past filing, the DOJ said the case was a “criminal investigation with direct implications for national security.”

Around midday on Friday, Dearie responded to Trump’s accusations by saying they had missed a pre-set deadline.

“To the extent Plaintiff asserts that the government’s letter of the same date . . . ‘is not fully accurate as to the Plaintiff’s position on various documents,’ any submission by Plaintiff to the contrary is now untimely pursuant to my Order of October 7, 2022,” Dearie wrote.

The Oct. 7 order “required the parties to submit their final log of positions regarding certain Filter Materials by October 20, 2022,” Dearie then recapped.

Friday is Oct. 21.

“Plaintiff may submit his position no later than the close of business today, October 21, 2022,” the order concluded.

Trump’s attorneys took that sternly issued cue and responded in full late Friday afternoon.

In that response, Trump’s attorneys said materials connected to several presidential pardon requests should be covered by executive privilege. They also asserted that a letter sent to a judge regarding Rod Blagojevich’s commutation should be considered personal, not presidential.  The letter does not, as the DOJ asserted, seem to suggest that Trump is trying to assert executive privilege over documents Trump also considers to be “personal” in nature.

Indeed, Trump’s late Friday reply says the DOJ ‘s filing “mischaracterizes” Trump’s true position on seven separate items.

The DOJ filing is available here; Trump’s brief response from Thursday is here; his full response (filed Friday) is here.

Editor’s note:  this report has been updated to include Dearie’s response, which had not been issued when the original report was published.  It has been updated again to include Trump’s Friday reply, which came even later in the day.

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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.