Donald Trump has just filed his reponse to the feds’ Motion for Partial Stay.
The Response provides, in part:
This investigation of the 45th President of the United States is both unprecedented and misguided. In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records. By way of its Motion [ECF No. 69], the Government now seeks to limit the scope of any review of its investigative conduct and presuppose the outcome, at least as regards to what it deems are “classified records.” However, the Court’s Order [ECF No. 64] is a sensible preliminary step towards restoring order from chaos. The Government should therefore not be permitted to skip the process and proceed straight to a preordained conclusion.
MORE TO FOLLOW
The Judge had ordered the parties to consider, in formulating an Order for the Special Master, 100 documents the government says are classified. The government had said in its motion that the Special Master should not be permitted to review those documents.
| 09/08/2022 | 73 | PAPERLESS ORDER: In formulating the proposed order of appointment to be filed tomorrow, which shall include the special master’s schedule and order of operations, the parties are instructed to consider Defendant’s position as to the approximately 100 documents discussed in the Motion for Partial Stay 69 . Signed by Judge Aileen M. Cannon on 9/8/2022. (dsy) (Entered: 09/08/2022) |
Here is Trump’s response on that point, that the government presumes the documents are classified, but that is something the court, with the help of a Special Master, has jurisdiction to decide. Just because the government claims it doesn’t make it true or legally binding on the court:
… What is clear regarding all of the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with NARA, but not with the Department of Justice.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. Recognizing this, the Court exercised its equitable jurisdiction and inherent supervisory authority to “ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented.” Order [ECF No. 64 at 1]….First, the Government’s position incorrectly presumes the outcome—that its separation of these documents is inviolable and not subject to question by this Court or anyone else. Second, the Government’s stance assumes that if a document has a classification marking, it remains classified irrespective of any actions taken during President Trump’s term in office. Third, as noted above, the Government continues to ignore the significance of the PRA. Indeed, if any seized documents (including any purported “classified records”) are Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the PRA. 44 U.S.C. § 2205(3). Accordingly, President Trump (and, by extension, a requested special master) cannot be denied access to those documents….The Government’s Motion and appeal appear to presume the outcome of its review of the materials seized from President Trump. Critically, though, the Court’s Order is not a resolution of the ultimate merits of any argument raised by either President Trump or the Government. Rather, it merely directs the appointment of a neutral party to review the seized materials and, in conjunction, temporarily, and reasonably, precludes further use of the seized materials in the Government’s criminal investigation while that neutral review is ongoing. The Government is not likely to succeed on the merits of its appeal—even with respect to any subset of documents—because the Court reasonably exercised its equitable jurisdiction in adopting these appropriate measures….The Government claims this Court cannot enjoin use of the documents the Government has determined are classified. [ECF No. 69 at 5-8]. Therefore, the argument goes, as President Trump has no right to have the documents returned to him—because the Government has unilaterally determined they are classified—the Government should be permitted to continue to use them, in conjunction with the intelligence communities, to build a criminal case against him. However, there still remains a disagreement as to the classification status of the documents. The Government’s position therefore assumes a fact not yet established. This Court’s Order exercising jurisdiction did not make findings as to the classification status of any documents. Further, whether it was lawful for the Government to seize those documents has yet to be determined by a court of competent jurisdiction. But that ultimate determination is an issue separate from this Court’s Order and whether a stay pending appeal is necessary.5 ….This Court has provided more than adequate reasoning as to why a special master is needed to further review the documents in question. [ECF No. 64 at 14-19]. A special master is not an agent for either President Trump or the Government. The very purpose of a special master is to serve as a neutral third party, with appropriate authorization, reviewing documents to facilitate resolution of the parties’ disagreements. In opposing any neutral review of the seized materials, the Government seeks to block a reasonable first step towards restoring order from chaos and increasing public confidence in the integrity of the process.
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