October 7, 2022

SHREDDED! Justice Department filing flays Trump’s calamitous claim of privilege

MASTER FATE: Appeals court hands Trump another big loss

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In a new filing, the Department of Justice has confirmed the validity and legality of the FBI search of Mar-a-Lago, deftly shooting down Donald Trump’s claims in its reply to his “Motion for Judicial Oversight and Additional Relief.” The Justice Department filed its brief late last night, just under the court’s deadline for its response, and pushed back on the former President’s erroneous claims in a 36-page filing in District Judge Aileen Cannon’s court.

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“Plaintiff’s filings present three issues: whether Plaintiff is currently entitled to the return of any property, to injunctive relief, and to the appointment of a special master. Not only does Plaintiff lack standing to raise these claims at this juncture but even if his claims were properly raised, Plaintiff would not be entitled to the relief he seeks,” the Justice Department stated.

According to the summary argument, “The Presidential Records Act makes clear that ‘[t]he United States’ has ‘complete ownership, possession, and control’ of them.”

Trump’s legal argument that he should be able to continue to possess the documents seized on the August 8th search of Mar-a-Lago has no standing because, in the words of the DOJ, “those documents don’t belong to him.”

A filter team assigned to sift through the documents seized by the FBI – separating potentially privileged records from those covered by the search warrant – has already finished its investigation, rendering Trump’s request for a special master moot – having already completed what a special master would be assigned to do.

“Furthermore, appointment of a special master would impede the government’s ongoing criminal investigation and—if the special master were tasked with reviewing classified documents—would impede the Intelligence Community from conducting its ongoing review of the national security risk that improper storage of these highly sensitive materials may have caused and from identifying measures to rectify or mitigate any damage that improper storage caused,” the DOJ argues.

Filed in a separate court, the Justice Department presented the current judge a timeline of the department’s good faith attempts to retrieve classified material prior to obtaining the unprecedented search warrant, proving that since Trump left office in Jan. 2021, the National Archives and Records Administration (NARA) was frequently in communication with the former President’s team.

It would be a year before 15 boxes of classified documents were returned, raising concerns about the national security implications of the unsecured documents with the possible mishandling of top secret government records.

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In a letter from Acting Archivist of the United States, Debra Steidel Wall, to Trump attorney Evan Corcoran dated May 10, 2022, Ms. Wall reminded Corcoran of the National Archives’ pursuit of the missing documents.

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“As you are no doubt aware, NARA had ongoing communications with the former President’s representatives throughout 2021 about what appeared to be missing Presidential records.”

Over the course of several months, NARA communicated with Trump’s aides, sending a letter to the former President’s attorneys asserting the importance of retrieving the classified documents in the interest of national security and the federal government’s ongoing criminal investigation.

In April, the Acting Archivist wrote:

‘There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials. According to NARA, among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages.”

After being “assured” by Trump lawyers that all classified documents had been returned to the United States government with a written affidavit, an inspection of materials retrieved in June raised concerns that the former President’s camp wasn’t being forthcoming – leading to the application for the search warrant.

On August 8th, “the government seized thirty-three items of evidence,” according to the DOJ filing.

While Trump has loudly been complaining that the documents he retained included materials covered by executive privilege, the Justice Department put a quick end to that claim, citing the precedent of Nixon v. Administrator of General Services (Nixon v. GSA):

“Review of Presidential records by “personnel in the Executive Branch sensitive to executive concerns” “constitutes a very limited intrusion” into confidentiality of former President’s records),” that decision concluded.

Before Congress established the National Archives and Records Administration as a separate agency in 1985, the National Archives was a part of the GSA.

The Justice Department included a photo in their response to the Florida-based District Court to show the levels of classification among the records. Some included the highest levels of clearance – with FBI and DOJ officials reviewing them having to obtain additional security certifications to simply be able to review the contents of the top-secret materials, the filing reveals.

The Justice Department used the example of the ex-President’s former lawyer Michael Cohen – the longtime “fixer” who pled guilty in 2018 to eight counts related to his work for the Trump Organization, including tax fraud, campaign finance violations, and bank fraud – to shoot down Trump’s delay in filing for injunctive relief.

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United States Attorney Juan Antonio Gonzalez and Jay Bratt, Chief of the Counterintelligence and Export Control Section of the National Security Division, have asked the court to deny Trump’s requests, and impose a decision by September 30, 2022, on the special master’s review.

Now that the Justice Department has filed its response to Trump’s motion, the next step is to wait for Judge Cannon’s decision. Given that the DOJ is unlikely to make any indictments before election day, we will just have to be patient.

Read the Justice Department filing here.

Follow Ty Ross on Twitter @cooltxchick

Ty Ross

News journalist for Washington Press and Occupy Democrats.

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