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Trump had 'unfettered' right to declassify docs, his attorneys say

Trump had 'unfettered' right to declassify docs, his attorneys say

Former president's attorneys said it's too soon to offer a substantive defense, but claimed in court that he was ultimate authority on declassifying documents

  • Former President Donald Trump, at a January, 2021 event in Texas.
    Shealah Craighead/Trump White House Former President Donald Trump, at a January, 2021 event in Texas.

Former President Donald Trump’s attorneys appeared in Brooklyn federal court Tuesday, preparing to push back against the government’s investigation into whether Trump kept potentially privileged documents at his Mar-a-Lago estate.

U.S. District Judge Raymond Dearie is tasked with reviewing some thousands of materials uncovered during an FBI raid of the south Florida home.

Trump’s attorney James M. Trusty said he’s “telegraphed” his future defense in court briefs: That Trump had the final say on whether or not documents were in fact classified. 

“The Presidential Records Act does supersede traditional classification concerns,” Trusty said. “As someone who’s been president of the United States, they do have unfettered access along with unfettered declassification authority.” 

However Trusty, of the Washington D.C.-based firm Ifrah Law, explained that he’s not yet in a position to make that case, which should be presented in connection with a property return motion under federal criminal rules. 

“I don’t disagree with you,” Dearie told Trusty. “My position is you can’t have your cake and eat it.” 

The FBI took about 20 boxes of documents, including 11 sets of classified records, from Mar-a-Lago. Dearie gave Trump’s team until Friday to pick a vendor to digitize the documents, picking from a list of five options provided by the government. 

Delaying the investigation of those documents, U.S. District Judge Aileen Cannon of the Southern District of Florida appointed Dearie as special master following Trump’s motion for judicial oversight. 

Among the seized materials were the grant of clemency to the former president's close ally Roger Stone, binders of photos and what is described as “info re: President of France.”

Other materials “might be articles of clothing or golf shirts,” Trusty noted Tuesday, which would accelerate the review process that he estimated would take 220 “man hours” to complete. 

Another way to speed it up suggested Trusty, who has top secret clearance from another matter, would be to give the clearance to more of Trump’s legal team. 

However the review is not just a matter of being cleared, Dearie said. It should happen on a “need to know” basis, and even Dearie himself will avoid exposing himself to sensitive documents if he can make his recommendations to the Trump-appointed Cannon without doing so. 

“Let’s not belittle the fact that we are dealing with at least potentially classified information,” Dearie said. “If you need to know, you will know.” 

Per Cannon, Dearie may consult with the National Archives and Records Administration, an option the government has encouraged him to take. 

The documents would be in the administration’s custody “if they had not been stored in an improper place,” said attorney Julie A. Edelstein of the Department of Justice’s Counterintelligence & Export Control Section, who did most of the speaking on the government’s behalf. 

Trusty disagreed, saying the records administration is a “political and partisan organization,” and pointing to its statement explaining that some digitized materials “may reflect outdated, biased, offensive, and possibly violent views and opinions.”

The FBI’s investigation is on hold while the review takes place. The government appealed Cannon’s order granting that pause, and depending on the decision from the 11th Circuit will “consider other appellate options,” Edelstein said.

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