Former Republican President Donald Trump's legal defense amidst the escalating fallout from the FBI search of his Mar-a-Lago residence last month is not going well--and it's his own lawyers' fault.
Trump has repeatedly justified his hoarding of the highly sensitive documents the FBI found in his office by saying he "declassified" them on his way out of the White House.
But in a new court filing, Trump's lawyers argue the classification status of the documents should be "determined later"--a direct contradiction of Trump's own defense.
\u201cHere, Trump's lawyers directly contradict Trump by saying the issue of whether the docs remain classified is "to be determined later." \n\nhttps://t.co/SW1oCoht6f\u201d— Kyle Cheney (@Kyle Cheney) 1662990473
Trump's lawyers were careful to argue that Trump absolutely had the right to declassify the documents--an assertion that is ultimately beside the point, as the question is whether or not they were declassified at the time he removed them.
His lawyers chose not to address that topic in any way.
The filing was in response to the DOJ's appeal of federal Judge Aileen Cannon's decision to grant Trump's request that a "special master" be appointed to review the documents found in the FBI's search.
The DOJ is seeking to shorten the review period, exclude more than 100 classified documents from its terms, and exclude claims of privilege from the agreement.
The DOJ, however, has already reviewed the documents in question during the two-week period it took for Trump's camp to file their motion, and found nearly 200 highly classified documents in the trove, including those designated "top secret" and those pertaining to an unnamed foreign nation's nuclear capabilities.
Trump's filing shows that he and his attorney are pursuing a two-pronged defense strategy: one, that "the former president" has authority to decide what is and is not classified; and two, that under the Presidential Records Act the documents in question belong with either Trump or the National Archives, but not with the DOJ.
The first assertion is outright nonsense from a legal perspective--sitting Presidents have such authority, but former presidents do not.
\u201cThis line is just outright "false" when you stick the word "former" in it.\u201d— Kyle Cheney (@Kyle Cheney) 1662990473
But these weren't the only bizarrely incompetent assertions in the filing.
Trump's lawyers also absurdly downplayed the entire saga as a "document storage dispute" and contradicted Trump's other go-to defense: that the FBI and DOJ planted the sensitive documents in his office as part of an effort to entrap him.
All in all, not a particularly convincing filing for Trump and his lawyers to say the least, and people on Twitter couldn't help but roll their collective eyes.
\u201cbig lessons in "not posting before consulting your lawyers" (screenshot from Aug. 31st)\u201d— nikki mccann ram\u00edrez (@nikki mccann ram\u00edrez) 1662995108
\u201c@kyledcheney \u201cStorage dispute\u201d is when you don\u2019t have enough room in the fridge for the groceries you brought home, and have to decide what to get rid of.\n\nTrump didn\u2019t STORE, he STOLE\u2026 and many of our nation\u2019s top secrets are still missing.\u201d— Kyle Cheney (@Kyle Cheney) 1662990473
\u201c@kyledcheney Once again this is more of a public relation filing than a legal filing. Maybe the judge will come to her senses about all of this, but I have my doubts.\u201d— Kyle Cheney (@Kyle Cheney) 1662990473
\u201c@kyledcheney It's just depraved obstruction at this point. He is causing irreparable harm to our national security & so is judge Cannon by entertaining this whole obstructionist clown show. https://t.co/ok2LSQpDQ4\u201d— Kyle Cheney (@Kyle Cheney) 1662990473
\u201cStrange line here, too: "Of course, classified or declassified, the documents remain either Presidential records or personal records under the PRA." So they might be classified AND personal?\u201d— Josh Gerstein (@Josh Gerstein) 1662991274
\u201c@kyledcheney The search was not even conducted for the purpose of finding evidence of PRA violations. \nThe Espionage Act, for example, which is one of the basis for the search, is never mentioned! \nEspionage Act does not depend on classification status.\u201d— Kyle Cheney (@Kyle Cheney) 1662990473
\u201c@kyledcheney \u201cDocument storage issue that has spiralled out of control\u201d\n\nGive me a break. They actually filed this. In court.\u201d— Kyle Cheney (@Kyle Cheney) 1662990473
\u201cThem Jimmy Carter should just reclassify them.\u201d— Jill Levy. (@Jill Levy.) 1663005090
\u201c@kyledcheney So he's no longer claiming he declassified them, just that it is "TBD" whether they were classified\u201d— Kyle Cheney (@Kyle Cheney) 1662990473
\u201cCritically, the former president has sole discretion to decide whether he can be investigated for crimes.\u201d— Kaili Joy Gray (@Kaili Joy Gray) 1662996057
\u201cHow would ultra-secret national security documents have ceased to be classified? They talk as if classification gradually wears off when exposed to air.\u201d— RationalLeft (@RationalLeft) 1662996215
\u201c@kyledcheney @nicholaswu12 \u201cClassified records.\u201d So they suggest the documents were either never classified, or declassified. But they can\u2019t say declassified because they know they aren\u2019t.\u201d— Kyle Cheney (@Kyle Cheney) 1662990473
\u201cone of the things i like about this argument is that by implication, obama could have just said "i declassified everything it's fine" and the clinton email issue would have gone away entirely as both a political and legal matter https://t.co/zkdQBt7wNQ\u201d— Adam Serwer \ud83c\udf5d (@Adam Serwer \ud83c\udf5d) 1662995810
Even as The Department of Justice has appealed Judge Cannon's decision on a "special master," they have also signaled their approval of one of the Trump team's choices to serve in the role: Judge Raymond Dearie, a Reagan appointee to the federal bench, who now serves as a senior circuit judge. He also served on the FISA Court, which approved the surveillance of Trump ally Carter Page as part of the investigation into whether Trump colluded with Russia in the 2016 campaign.
UPDATE 9/13/22 4:20pm ET: Trump lawyer Jesse Binnall went on Newsmax to assert once again that Trump did declassify "a number of things" while he was still president.
\u201cTrump attorney Jesse Binnall claims \u201cTrump did declassify a number of things\u201d related to documents seized from Mar-a-Lago, despite Trump and his attorneys still refusing to make that argument in court.\u201d— The Recount (@The Recount) 1663099981
It is notable that Trump lawyers are willing to make this assertion publicly on television but not in an official court filing.
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