The latest filing from Trump emphasized the authority a president has to declassify records and leaned into the idea that the documents’ classification status at this point should be viewed as ambiguous.
“The Government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable. However, the Government has not yet proven this critical fact,” the Trump filing said.
Trump has claimed in media interviews that he declassified the documents from his White House he took back to his Florida home, but his attorneys have stopped well short of making such an assertion in court.
The Justice Department is appealing a federal judge’s order pausing the investigation for the special master review, with prosecutors asking the appeals court to carve out the documents seized at Mar-a-Lago that were marked as classified.
In Tuesday’s filing with the 11th Circuit, Trump argued that “the District Court’s orders are a sensible preliminary step toward restoring order from chaos, and this Court should therefore deny the Government’s Motion.”
The case is traveling to the 11th Circuit after Trump successfully sued to obtain a special master — ie a third party attorney — to review the materials the FBI seized at Mar-a-Lago last month, and the focus is now around who can work through about 100 seized records marked as classified first.
Prosecutors have argued that pausing the criminal investigation into them poses national security risks. They say that the criminal probe cannot be decoupled from an intelligence community assessment of the documents that US District Judge Aileen Cannon has allowed to proceed. In court filings last week, the Justice Department rejected the idea that Trump could claim that any of those 100 records were his personal records — a claim Trump could make as he tried to keep the materials from investigators’ hands. Additionally, the Justice Department has questioned how Cannon has inserted himself into the dispute in the first place, arguing that the judge did not have the authority to interfere with the prosecutors’ review of the documents.
Trump, in his latest filing, defended Cannon’s approach, as he claimed the Justice Department’s investigation was “unprecedented and misguided.”
Trump insists special master review will be only a “short pause”
In new court filings Tuesday, Trump’s lawyers repeatedly touted the expected quickness of the special master review, referring to it as a “short pause” and a “brief delay” that “merely delays the investigation for a short period while a neutral third party reviews the documents.”
In a footnote, however, Trump also argued that “at best” the government may be able to establish that some of the records in question belong with the National Archives, but Trump said they do not belong with the Justice Department.
“However, it is not even possible for this Court, or anyone else for that matter, to make any determination as to which documents and other items belong where and with whom without first conducting a thoughtful, organized review,” his filing said.
Another footnote hinted that he may be able to assert privilege over documents marked as classified that are said to have his handwritten notes.
This story has been updated with additional details.
CNN’s Katelyn Polantz and Marshall Cohen contributed to this story.