Trump claims to have a record of White House pardons and immigration policy
WASHINGTON – Former President Donald J. Trump claims nine documents seized by the FBI from his Florida residence are his personal property – but the Justice Department says they are official records that should be deposited in the National Archives, according to a new letter sent by a special master who supervises the inspection of the material.
The letter, filed Thursday by the Justice Department, described disputes over ownership and privilege requests by the executive branch, including a group of 15 records that received early review. It likely foreshadows a larger scramble to get hold of the bulk of the roughly 13,000 documents and other materials FBI agents seized from Mar-a-Lago, Mr. Trump’s club and residence, in a court-authorized search in August.
Materials from the initial tranche that Mr. Trump claims belong to him include six packages delivered to him while he was president supporting clemency requests for pardon seekers; two documents related to his administration’s immigration policy; and an e-mail addressed to him from a person at the military academy, it says.
But the Justice Department, in its letter, scoffed at the idea that any of the material belonged to Mr. Trump. It cites the Presidential Records Act, which says all documentary materials created or received by the president, his staff or his office in the course of official activities are government property that should go to the National Archives when the president leaves office.
Of the clemency packages, for example, the Justice Department wrote: “These requests were received by the prosecutor in his capacity as an official with the authority to grant reprieves and pardons, not in his personal capacity.”
The dispute stems from a decision by Judge Aileen M. Cannon in the Southern District of Florida to grant Mr. Trump’s request to intervene in a Justice Department investigation into whether he illegally kept classified records at his estate and obstructed repeated government efforts to retrieve them.
More on the Trump documents investigation
- Privilege claims: The special master reviewing materials seized from Mar-a-Lago told lawyers for former President Donald J. Trump that support their claims that certain documents were privileged and therefore could be withheld from a Justice Department investigation.
- Request of the Supreme Court: Without any expressed dissent, the judges rejected the request from Mr. Trump yes court intervene in litigation through documents seized from his Florida estate.
- New detail: He is said to have been a longtime aide to Mr. Trump captured on security camera footage moving boxes from storage at Mar-a-Lago both before and after the Department of Justice issued a subpoena demanding the return of all classified documents.
- Documents still missing?: A senior Justice Department official told Trump’s lawyers in recent weeks that the agency believed he did not return all the records he took when he left the White House, according to two people familiar with the matter.
Surprising legal experts, Judge Cannon, a Trump appointee, imposed an injunction temporarily blocking criminal investigators from using any of the documents. She also appointed a special administrator, Judge Raymond J. Dearie of the U.S. District Court in Brooklyn, to review any claims that they are Mr. Trump’s personal property or protected by attorney-client or executive privilege.
In the letter, addressed to Judge Dearie, the documents are described in broad strokes because the list is still technically sealed. However, because the list was entered into the public record by mistake before it was taken down and copies are posted onlineit is possible to see in detail which files are disputed.
The letter said Mr. Trump also argued that four of the 15 documents should be withheld from investigators under executive privilege. They include two documents on immigration policy, which Trump’s team said were pre-decision materials, and two documents on meetings he was supposed to approve and specific questions he was asked.
The Justice Department argued that Mr. Trump “cannot logically assert” executive privilege over the two immigration policy documents at the same time he claims they are personal property, saying “only official records are subject to claims of executive privilege.”
That dispute appeared to shed light on a comment Judge Dearie made in a conference call with the parties earlier this week. Complaining that Trump’s legal team didn’t offer much substance to explain its claims, he noted a document that lawyers argued was both personal property and protected by executive privilege.
“Unless I’m wrong, and I’ve been wrong before, there’s certainly an impropriety,” Judge Dearie said at the time.
The Justice Department, which appealed Judge Cannon’s order, argued that a former president cannot use executive branch privilege to withhold executive branch materials from executive branch criminal investigators.
In its letter, the department said Trump’s team relied judgment from 2012 claiming that their client owns the materials. In that case, a district court judge dismissed a lawsuit by a conservative group that wanted to force the National Archives to challenge former President Bill Clinton’s earlier decision to designate a set of interview tapes as his personal property.
Trump’s legal team also cited the case in public filings, arguing that the ruling means presidents have “extreme discretion” to designate White House materials as their property. However, in public filings, lawyers have not argued that he considered any of the documents his property before leaving office.
The Justice Department noted that Mr. Trump offered “no evidence that he actually marked” the disputed documents as personal records while in office. And, he writes, neither the 2012 ruling nor any other by the court “suggested that presidential records could otherwise be made personal by warrant.”
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