“Seems like a poor strategy”: Experts knock Trump’s "incoherent" claim that docs are his property

"The clear message to Trump's team is DOJ is pushing forward full steam ahead," ex-prosecutor says

By Areeba Shah

Staff Writer

Published October 21, 2022 2:01PM (EDT)

Donald Trump gestures at a press briefing (FREDERIC J. BROWN/AFP via Getty Images)
Donald Trump gestures at a press briefing (FREDERIC J. BROWN/AFP via Getty Images)

Former President Donald Trump claimed that nine documents, including clemency requests and packages on immigration policies, seized from Mar-a-Lago are his personal property, according to new court filings addressing the special master reviewing the materials.

The Justice Department filed a letter on Thursday, describing disputes over ownership and executive privilege claims involving a batch of 15 records that have undergone early review, according to The New York Times

The seized materials, including classified information, were discovered at Trump's Mar-a-Lago residence in August as part of the FBI's search. Six of the documents the DOJ described are clemency requests Trump received while president and two documents are related to immigration and border control laws, presidential powers and initiatives, prosecutors said, according to CNN.

The DOJ cited the Presidential Records Act, which states that all documentary materials created or received by a president, his staff or his office in official activities are government property and should be deposited with the National Archives.

"Those requests were received by plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity," the DOJ said in a filing.

Trump also claimed that four of the 15 documents should be withheld from investigators because of executive privilege. They include the two immigration policy documents, which Trump's team said were "predecisional materials," and two documents about meetings, the Times reported. 

But Trump "cannot logically assert" executive privilege over the two immigration policy documents while claiming they are personal property, the Justice Department argued, adding that "only official records are subject to assertions of executive privilege."

"Personal records that are not government property are seized every day for use in criminal investigations," the government said in a footnote of the filing. "And the fact that more than 100 documents bearing classification markings were commingled with unclassified and even personal records is important evidence in the government's investigation in this case."

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The dispute provides an insight into the review of about 11,000 documents Judge Raymond Dearie is undertaking. The special master was appointed last month by U.S. District Judge Aileen Cannon at Trump's request. Dearie's review will determine if any documents are to be shielded by attorney-client or executive privilege.

Ryan Goodman, a New York University law professor, criticized the Trump team's attempt to claim communications about clemency petitions as personal records for Trump to keep.

"That seems like a poor strategy for convincing Judge Dearie," Goodman tweeted, adding that Trump's claim that personal property is also covered by executive privilege is a "metaphysical impossibility."

Former federal prosecutor Andrew Weissman, who served on Bob Mueller's team, lit into Trump for claiming that clemency petitions are not government records.

"That is just so telling as to how Trump viewed clemency power," Weissman wrote on Twitter. "Wielded with no regard to the public good and for his own personal gain and purposes. But legally he's all wet that such petitions are not [government] records." 

Former U.S. Attorney Harry Litman described Trump's argument as "incoherent" for claiming executive privilege over four documents, two of which he agreed are personal records.

"DOJ's response – and this is the whole ballgame – is that first, the only suggestion from the Supreme Court that a former president can invoke Executive privilege involves the communications part of the privilege, not the deliberative-process part. That's a new argument based on the nature of Trump's exec privilege claim," Litman tweeted

Former federal prosecutor Renato Mariotti said the government filing makes it clear the DOJ is not "ready to pack its bags and go home."

"The clear message to Trump's team is DOJ is pushing forward full steam ahead on the Mar-a-Lago documents team and is considering charges," Mariotti tweeted.

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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Aggregate Donald Trump Mar-a-lago Politics Raymond Dearie