Then-President Trump designated presidential records as personal records simply by packing them up and taking them to Mar-a-Lago, his lawyers wrote in newly unsealed court documents.
A series of documents filed over the weekend along with others unsealed Monday offer the latest glimpse into Trump’s battle to shield records from the Department of Justice (DOJ), including new evidence from the DOJ that he appeared to have handled the classified records on his property after leaving office.
The filing argues that the determination of whether records created during a president’s term are their personal property is largely up to the president.
“President Trump was still serving his term in office when the documents at issue were packed, transported, and delivered to his residence in Palm Beach, Florida. 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 lawyers wrote in a brief.
The Justice Department countered that Trump cannot decide a record is his personal property “simply by saying so.”
Such an interpretation of the Presidential Records Act, it wrote, would “nullify the statutes entire purpose.”
The filing comes as Trump pushes to keep more than 10,000 documents from the Justice Department, a tranche that remains after records marked as classified were returned to the DOJ. The special master assigned to review the documents, Judge Raymond Dearie, asked both sides to suggest guidelines for determining which records should be turned over.
Trump’s lawyers went on to argue he should not have to prove that he designated the documents as personal, echoing similar arguments made after Trump claimed he declassified the records stored at his Florida home.
“In other words, it is the President’s designation—not the appearance or content of a given document—that is determinative. … President Trump need not put forth documentary evidence of his designation decisions, because his conduct unequivocally confirmed that he was treating the materials in question as personal records, rather than Presidential records,” they wrote.
The Justice Department called such an argument a “shell game,” with Trump hoping to fall back on claims that the documents are protected by executive privilege if it fails.
Government attorneys wrote that the two are “essentially the opposite” of each other.
“Plaintiff has indicated that he asserts executive privilege only if the special master rejects his assertion that a document is a ‘personal’ record and determines that it is a presidential record. That is a shell game and the special master should not indulge it,” the DOJ wrote.
In a Saturday filing to the court, the DOJ also indicated that one batch of the documents under review included cover sheets for classified documents, even though the classified records themselves were missing. The DOJ is seeking to retain that collection of records, arguing the other documents in the box, including those dated after Trump’s term ended, indicate he was handling the records after leaving office.
Such evidence would cut against any potential argument from Trump that he was unaware of what classified records were stored at his home.