Trump asks 11th Circuit to uphold stay on DOJ investigation, special master demands answers

Trump cites an executive order from Barack Obama granting the president broad authority to declassify documents.

Updated: September 20, 2022 - 4:52pm

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Former President Donald Trump has formally asked the 11th Circuit Court of Appeals to reject the Department of Justice's bid to continue reviewing documents the FBI seized from his Mar-a-Lago estate.

Last week, District Judge Aileen Cannon granted Trump's requests both to appoint a special master to independently review the documents the bureau took and to bar further DOJ review of those materials.

Cannon named New York Judge Raymond Dearie to serve as special master. Trump had suggested Dearie fill the role and the DOJ indicated that it considered him an acceptable choice. Prior to Dearie's appointment, the DOJ had already appealed Cannon's decision to appoint a special master and to bar their further review of the disputed materials, arguing a delay would cause "irreparable harm" to the investigation.

In a Tuesday filing, Trump's legal team asked the higher court to reject the DOJ's appeal. Among the key points in Trump's filing is the assertion that he had authority to declassify the seized documents. It does not directly state that he did so. Dearie has sought documents to determine whether Trump did in fact declassify the materials, according to Reuters, as he has previously claimed on social media. Tensions between Trump's legal team and the special master it nominated emerged when the former president's attorneys indicated they were not prepared to comply with his request.

First among the former president's arguments is Trump's assertion that "[t]he material seized from President Trump's home includes not only 'personal effects without evidentiary value' but also approximately five hundred pages of material that is likely subject to attorney-client privilege, as well as medical documents, and tax and accounting information." The former president's legal team then asserts that Trump maintains "'a colorable ownership, possessory or security interest in at least a portion of the' seized property."

The second of his points address a prior executive order which former President Barack Obama issued granting the president broad authority to declassify documents. "The President has absolute authority to declassify any information," they wrote, citing the Obama-era order. "There is no legitimate contention that the President's declassification of documents requires approval of bureaucratic components of the executive branch."

Trump has previously asserted that the documents in his possession were previously declassified under his presidential authority. Former advisers to the president have echoed claims about his legal authority to declassify documents.

His legal team then goes on to point to the Presidential Records Act and asserts that it grants him the right of access to many of the documents in question. "To the extent certain of the seized materials constitute Presidential records, a former President has an unfettered right of access to his Presidential records even though he may not 'own' them," the filing reads.

Prior to Tuesday's hearing, Dearie had requested that Trump's legal team provide some evidence that the former president did in fact declassify the documents. At this point, Trump's team had asserted his authority to declassify documents and Trump himself had asserted that everything was declassified on social media. The legal team had yet to formally claim he declassified anything and provide evidence to substantiate it.

Dearie had sought details as to the specifics of Trump's declassification claims, though Trump's lawyers said they were "not in a position" to provide that information without first reviewing the documents themselves, according to Reuters.

Trump attorney James Trusty told Dearie on Tuesday he believed the request for specifics on declassification went beyond the scope of his appointment as special master, a claim for which Dearie said he was "taken aback."

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