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Trump's Lawyers Claim All Seized Documents Are Personal. Also They're Presidential Records Subject To Privilege.

Sure to wow 'em at the Eleventh Circuit.

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(Photo by Win McNamee/Getty Images)

Last night, Trump’s legal team dropped another sinker in the Eleventh Circuit’s punchbowl with its brief against the government’s appeal of the special master in the Mar-a-Lago documents case.

In September, the government appealed just the portion of the order which included documents marked classified in the special master review and blocked the government from using them in its criminal investigation. The appellate panel, including two Trump appointees, issued a withering rebuke of US District Judge Aileen Cannon’s legal reasoning, casting serious judicial side-eye at her finding of equitable anomalous jurisdiction over a criminal warrant issued by another judge.

“Whether a court should exercise its equitable jurisdiction in this context ‘is subject to the sound discretion of the district court,’” the panel wrote ominously. “But that discretion is not boundless.”

The panel also rejected a host of jurisdictional arguments made by the former president, who asserted that the appointment order was interlocutory, and thus not appealable, even as to the injunctive portion barring the government’s use of its own classified materials in a criminal investigation.

Special master Judge Raymond Dearie’s review is proceeding at a clip, but in the meantime, the Justice Department appealed the entire order to the Eleventh Circuit, noting that Richey factors to qualify for equitable jurisdiction are no more satisfied for the broader set of documents seized than for those with classified markings, because , despite Trump’s howls about being targeted by the Biden administration, there’s no evidence that the FBI callously disregarded his rights when it executed a judicially authorized warrant.

As the appellate panel noted, this first factor is uniformly regarded as indispensable, and should be dispositive. But for the sake of clarity, the court went through the other factors, finding that Trump had no individual interest in or need for the seized materials, would not be irreparably injured by denial of the return of the property, and had adequate remedy at law should he ever be charged.

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In their response yesterday, Trump’s legal team repeats all of the same arguments about jurisdiction which the panel previously rubbished, and they invite the Eleventh Circuit to pretend that government misconduct is not a prerequisite to relief. Essentially, their position is, “Everyone knows the first Richey factor is ‘indispensable.’ What this brief presupposes is … maybe it isn’t?”

None of which is worth engaging with here, so we won’t bother, especially when this document is such a target-rich environment.

For instance, here’s an admission that the documents seized contain at least some presidential records:

In what at its core is a document dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records.

How does this exist within the same filing which characterizes anything that Trump pocketed on his way out of the White House and stuck in his pool locker as “presumptively personal”?

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Thus here, since President Trump had complete authority under the PRA to designate initially the records at issue as “personal” during his presidency, and the seized records “were not provided to the Archives at” the end of his presidency, the seized records are presumptively  personal.”

Dunno! But if you’re the kind of lawyer willing to blatantly misstate the Presidential Records Act, which does not allow the President to transubstantiate a classified record into a personal one, then perhaps you’re not bothered by a bit of cognitive dissonance. And if that requires you to ignore the lower court filings in which Trump asserted executive privilege over dozens of the disputed documents, explicitly conceding that they are not now and never were personal records, so be it.

In fact, Trump’s lawyers are not above simply making shit up about the PRA:

Where certain documents were designated by President Trump as “personal” during his presidency, those documents remain such unless and until that designation is challenged successfully in an appropriate civil action seeking review of the process by which the designation was made. Those documents must and should therefore be returned to President Trump, acknowledging fully the deference to which he remains entitled under the PRA.

Ditto for this blatant lie about the government exceeding the scope of the warrant which Trump’s lawyers buried in a footnote:

Thus, notwithstanding the Government’s argument it only sought records bearing classification markings, which was all the subpoena sought and Attachments A and B to the search warrant authorized, it nevertheless took the liberty to seize a spate of President Trump’s personal items, all of which lack any plausible relation to a national security investigation.

Trump’s lawyers know perfectly well that the warrant authorized the FBI to seize anything in a box with a presidential record because it constitutes evidence of improper storage. They know that Trump’s passports were seized — and almost immediately returned — because they were in his desk drawer next to highly classified material. They just don’t care.

And while they’re having their cake and lying about it, too, check out this fancy dancing around Trump’s suggestion that he declassified documents via astral projection and/or laying on of hands.

The Executive Order which controlled during President Trump’s term designates the President as an original classification authority, see Exec. Order 13526 § 1.3(a)(1) (Dec. 29, 2009), and grants authority to declassify information to either the official who originally classified the information or that individual’s supervisors—necessarily including the President. Id. § 3.1(b)(1), (3). Yet, the Government contends President Trump, who had unfettered authority to declassify documents, willfully retained classified information in violation of the law. See 18 U.S.C. § 793(e). Moreover, the Government seeks to preclude any opportunity for consideration of this issue.

Trump’s lawyers aren’t going to come out and say that he declassified those documents, which would be ridiculous. Even Trump’s lackey Kash Patel, who claimed to have witnessed this telekinetic declassification procedure, took the Fifth about it for the grand jury and was later granted testimonial immunity. But they’ll say it on Newsmax, no problem!

The whole brief is appalling, particularly the assertion that Trump is entitled to extra process and judicial deference, while prosecutors should be regarded with suspicion, because “a criminal investigation of this import—an investigation of President Trump by the administration of his political rival—requires enhanced vigilance to ensure fairness, transparency, and maintenance of the public trust.”

But this is the Eleventh Circuit, so … who can guess?

Liz Dye lives in Baltimore where she writes about law and politics.

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