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UPDATE: DOJ filing on Trump’s request for a special master

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DOJ seal

Former President Trump’s lawyers have filed a response to the DOJ filing.

He admits to having Presidential records in his possession. He is not legally entitled to have them. They were not secured.

Trump response
Contrary to claim, the classified documents were not secured.

No mention of having declassified any document.

Trump filing
“Declassify” does not appear in the filing.

6:44 pm Pacific

~~ Original post below ~~
As expected, the Department of Justice (DOJ) response to former President Trump’s demand that the court appoint a special master is pointed and detailed.

In the opening summary, the DOJ writes that “the former President lacks standing to seek judicial relief or oversight as to Presidential records because those records do not belong to him.”
DOJ - summary

Here’s a Watergate reference that squashes an assertion of executive privilege involving a sitting president, much less a former one:

In United States v. Nixon, the Supreme Court held that the need for evidence in a criminal trial outweighed even a sitting President’s assertion of executive privilege over presidential communications.

Key points

  • Trump’s attorneys have never asserted that he declassified these documents
    “When producing the Fifteen Boxes, the former President never asserted executive privilege over any of the documents nor claimed that any of the documents in the boxes containing classification markings had been declassified.”
  • Trump’s attorneys accepted but ignored the grand jury subpoena for documents
    (11 May 2022)
    “Through its investigation,3 the FBI developed evidence indicating that even after the Fifteen Boxes were provided to NARA, dozens of additional boxes remained at the Premises that were also likely to contain classified information. Accordingly, DOJ obtained a grand jury subpoena, for which the former President’s counsel accepted service on May 11, 2022… the government offered counsel an extension for complying with the subpoena until June 7, 2022.”
  • In June, DOJ was prohibited from examining the boxes in the basement when agents arrived to accept subpoenaed documents
    “When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege. Instead, counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents…Any and all responsive documents accompany this certification… the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained… Counsel for the former President offered no explanation as to why boxes of government records, including 38 documents with classification markings, remained at the Premises nearly five months after the production of the Fifteen Boxes and nearly one-and-a-half years after the end of the Administration.”
  • The August search found an additional 100 classified documents despite assertions by Trump’s attorneys that all documents had been returned. There were documents in areas other than the basement, contrary to sworn affidavit in June.
  • Many documents were so sensitive that reviewers needed additional clearance
  • The government has no obligation to return personal items.
    “[E]ven if the personal effects were seized in excess of the search warrant—which
    Plaintiff has not established—Criminal Rule 41(g) does not require their return because that Rule was amended in 1989 to recognize that the United States may retain evidence collected while executing a warrant in good faith.”

Responses

Document sensitivity

There have been a lot of tweets showing the photo of classified documents that is part of the DOJ filing. The GOP took issue with the photo.

GOP tweet

Obstruction

Footnote 6
Footnote six shows that there were classified documents in a desk drawer.

Bad strategy

Meltdown on Tuesday

He knows the DOJ has him dead to rights.