In documents unsealed Monday, the US Department of Justice (DOJ) accused former President Donald Trump of engaging in “gamesmanship” in the ongoing legal battle over government documents seized from Trump’s Mar-a-Lago, Florida residence. Trump’s legal team and the DOJ filed the documents previously under seal in response to Special Master Raymond Dearie’s request that both parties lay out the “global issues” presented by the nearly 3,000 documents at issue.
In their brief to Dearie, the DOJ outlined five global issues. First, the DOJ argues Trump cannot, on his own, designate the documents as “presidential records” under the Presidential Records Act (PRA). Hand in hand with that, the DOJ second argues that Trump is unable to categorize certain documents as “personal records.” Third, even if Trump were able to categorize a document as personal, he would then be barred from claiming executive privilege over the same document. But, the DOJ argues fourth that Trump is unable to assert executive privilege to withhold materials seized from executive review by the DOJ. Fifth, the DOJ asserts that Trump should file an affidavit verifying the inventory of documents seized by the DOJ is complete.
Trump’s legal team then responded to each of the DOJ’s global issues in turn. Addressing the first and second points, Trump’s team argued the PRA grants the president the power to determine whether a document is a presidential record or personal–which is exactly, they argue, what Trump did in the present case. To the third and fourth points, Trump’s team argued that Dearie is unlikely to encounter executive privilege issues since the documents are allegedly personal records. Even if Dearie were to consider executive privilege, Trump’s team argued Trump properly asserted it here because he claimed it in the alternative to a finding that the documents are personal records. Finally, to the fifth point, Trump’s team argued there was no basis to require Trump to submit an affidavit since Trump does not currently possess the seized documents.
Now, Dearie must review the global issues arguments submitted by the DOJ and Trump’s legal team, review the nearly 3,000 seized documents and submit his recommendations to the federal district judge overseeing the case by December 16. Dearie’s recommendations may very well determine which documents should be returned to the DOJ for use in their criminal investigation against Trump.
The DOJ also appealed Dearie’s appointment as special master to the US Court of Appeals for the Eleventh Circuit in October.