That sentence, the second of the filing, also directly contradicts an admission made elsewhere in the same document (but largely ignored as inconvenient), Marcy Wheeler points out: The records at issue are not only presidential or personal records. There are also federal records, which are governed by the Federal Records Act.
Even if federal records weren’t a thing, or there were no federal records among the documents Trump stole, though, his argument abuses the concept of personal records. Former President Bill Clinton got a judge to rule in his favor that recordings of interviews he did with journalist Taylor Branch were personal records, and Trump’s lawyers lean heavily on that judge’s decision. But recordings of Clinton talking with a journalist and top secret classified documents are two rather different things.
Trump’s lawyers strenuously work to undermine the seriousness of what he allegedly did by putting “classified records” in scare quotes, often modified by “purported.” As in, “The Government generally points to the alleged urgent need to conduct a risk assessment of possible unauthorized disclosure of purported ‘classified records.’ But there is no indication any purported ‘classified records’ were disclosed to anyone. Indeed, it appears such ‘classified records,’ along with the other seized materials, were principally located in storage boxes in a locked room at Mar-a-Lago, a secure, controlled access compound utilized regularly to conduct the official business of the United States during the Trump Presidency, which to this day is monitored by the United States Secret Service.”
We’ve all seen the pictures of documents labeled classified. There’s no “purported” about it, except insofar as Trump’s lawyers hint at presidential declassification powers—though they don’t directly assert that Trump did declassify those documents. Similarly, they dedicate a lot of space in the filing to the question of personal records without directly asserting any particular documents as personal records. The legal strategy here is similar to the messaging strategy of Trump’s allies since the FBI search of Mar-a-Lago: Throw out a flurry of excuses, see what sticks, and try to memory-hole the excuses that didn’t stick.
There’s a good reason for them to do that in this legal filing, too. While many judges would flay these arguments, as weak as they are, Aileen Cannon is not many judges. She’s a partisan who is not qualified to sit on the federal bench, and she has already shown her willingness to give Trump whatever he wants, no matter how weak his claims are. Tossing her a lot of possible arguments without quite committing to any of them is a decent strategy because it lets her seize on whichever one she wants rather than pinning her down to a single set of legal claims.
In Cannon’s court, this is all a charade. And so the very act of investigating crimes Trump may have committed is highlighting the damage he has also done to the U.S. federal judiciary. But for what it’s worth, the legal arguments in Trump’s filing are ridiculously flimsy and self-contradicting.
In addition to asking Cannon to allow it to continue reviewing the documents as part of its investigation, the Justice Department is appealing Cannon’s decision allowing Trump a special master to review the seized documents.
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