DOJ Shreds Latest Trump Legal Filing, Reminds Judge a President Can’t Declassify ‘Simply By Saying So’

Photo by EVA MARIE UZCATEGUI/AFP via Getty Images

The Department of Justice and lawyers for former President Donald Trump filed competing briefs last week regarding the status of the documents the FBI seized from Mar-a-Lago in early August, with Trump’s team claiming the materials, including classified documents, were “personal records.”

“Now that plaintiff has reviewed the seized materials and claimed the overwhelming majority of them to be his personal records, consideration of fairness, integrity, and evenhandedness require plaintiff to do what the government has done — namely verify the property inventory or correct if he believes it to be in error,” wrote the DOJ in the brief, which was unsealed Monday.

“A fair process requires both parties to ensure that the special master is adjudicating disputes over property actually seized from Mar-a-Lago,” the government added, insisting Trump sign a sworn affidavit as to what materials were in his possession.

The DOJ accused Trump’s legal team of “gamesmanship” as the former president has threatened to assert executive privilege over the documents and made legal claims to try and stop the FBI and DOJ from reviewing the documents seized from Trump.

Trump’s team asked for a court-appointed watchdog, known as a special master, to review the records to decide if any do in fact fall under the purview of executive privilege.

Trump’s lawyers argued in their brief last week, “The Presidential Records Act authorizes a sitting President to designate records as personal records during his term in office.”

“The questions now before the Special Master is therefore whether a President has the authority to decide whether a document is a ‘Presidential record’ or a ‘personal record,’” the lawyers added. “Both the plain language of the PRA and past court decisions answer this question in the affirmative.”

“Thus, when he made a designation decision, he was President of the United States; his decision to retain certain records as personal is entitled to deference, and the records in question are thus presumptively personal,” Trump’s team argued.

The DOJ swatted down this notion in their filing. “Plaintiff may not designate records qualifying as “Presidential records” under the Presidential Records Act (PRA), 44 U.S.C. $ 2201 et seq., as his ‘personal records simply by saying so.’”

In September, Trump created a media firestorm by telling Fox News opinion host Sean Hannity he could declassify documents just “by thinking about it.”

“I did declassify, yes,” Trump told Hannity.

“Is there a process?” Hannity asked. “What was your process?”

“There doesn’t have to be a process as I understand it,” Trump replied. “If you’re the president of the United States, you can declassify just by saying, ‘It’s declassified,’ even by thinking about it because you’re sending it to Mar-a-Lago or wherever you’re sending it. And there doesn’t have to be a process. There can be a process but there doesn’t have to be. You’re the president. You make that decision. So when you send it, it’s declassified. I declassified everything.”

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