Trump didn’t take the hint. Instead of letting his judge, Aileen Cannon, disentangle from the mess she made with her bonehead Labor Day decision, he and his lawyers still want to block the feds from reviewing the classified documents.
“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,” the Trump lawyers wrote, arguing that prosecutors are trying to limit any outside review of “what it deems are ‘classified records.’ ”
In brief, Trump is saying Nyah nyah nyah! So send it to the 11th Circuit Court of Appeals. I’ve packed it with my judges already. They’ll sit on it forever.
For months, former President Trump and his allies have claimed that, at the end of his term in office, he issued a broad declassification order.
Some of these statements — from Trump acolytes such as the former Rep. Devin Nunes (R-CA) staffer Kash Patel — came even before the FBI executed search warrants at Mar-a-Lago last month.
Now, in a Monday court filing, Trump is repeating those claims, except for one key point: he won’t say in court that he actually declassified the records seized by the FBI.
Trump’s attorneys stopped short of that defense. Instead, they claimed that, hypothetically, Trump had the power to declassify the records in question, and that he very well may have done so. Besides, they argued, isn’t the burden on the government to prove that the records themselves were no longer classified?
“The Government contends that President Trump can have no such interest in the purported ‘classified records,’” the filing reads. “But, again, the Government has not proven these records remain classified. That issue is to be determined later.”
Exactly what part of “Trump has created a national security crisis” are they not getting? Oh, never mind.
It’s my understanding that the government documents are stolen property, classified or not. Even if Trump were able to persuade a court that he really had declassified everything, he doesn’t get them back.
Trump’s lawyers also argue that the government can’t possibly be all that concerned about the allegedly classified information. Colin Kalmbacher at Law and Crime:
The 22-page motion in opposition the DOJ’s motion for a partial stay pending appeal attempted to undercut the government’s “serious harms” position by pointing to recent “unauthorized leaks” of information about the allegedly “classified records” in question.
“The Government is apparently not concerned with unauthorized leaks regarding the contents of the purported ‘classified records,’ and would presumably be prepared to share all such records publicly in any future jury trial,” the motion argues in a footnote – which contains a link to a Sept 6, 2022 Washington Post story titled: “Material on foreign nation’s nuclear capabilities seized at Trump’s Mar-a-Lago.” …
… “[F]or the record, these leaks are very problematic,” national security attorney Kel McClanahan, who has generally been critical of Trump’s legal position in the case, tweeted on Monday morning. “They already formed the basis of Cannon’s original order. I understand why the person is leaking them, but they need to keep in mind that if they end up losing this fight, it will be in large part because of them.”
Trump’s lawyers also argue that “President Trump clearly has an individual interest in and need for the seized property.” Yeah, he needs to know another country’s nuclear secrets.
I’m sure there will be more commentary popping up about this as the day goes on.
Update: Emptywheel, who is smarter than most of us, says that the authority Trump’s lawyers cite in their filing today — an Executive Order signed by President Obama in 2009 — actually makes the DoJ’s argument that ex-Presidents have no rights to classified documents.