The Justice Department made that argument late Tuesday as it sought to continue its review of classified records seized from Trump’s Palm Beach resort, Mar-a-Lago, in an FBI raid last month. The DOJ’s filing with the US Court of Appeals for the 11th Circuit took aim at Trump’s lawyers, who earlier on Tuesday asked the court to uphold a lower federal judge’s ruling that prevented the government from reviewing the seized documents. Trump “again implies that he could have declassified the records before leaving office,” federal prosecutors wrote. “As before, however, Plaintiff conspicuously fails to state, let alone show, that he actually took this step,” they wrote, referring to Trump. Justice Department lawyers added that Trump is “now resisting” a request by a court-appointed special master to provide him with evidence that he declassified seized records. “In any event, the plaintiff’s attempt to raise questions about classification status is a red herring,” prosecutors argued. “Even if Plaintiff could prove that he declassified the records at issue, there would be no justification for limiting the government’s use of evidence at the center of an ongoing criminal investigation.” U.S. District Judge Aileen Cannon had authorized the appointment of the special master, an independent third party who would review the thousands of records to identify personal items and information that could be protected by various legal privileges. As part of that ruling, Cannon temporarily stopped the DOJ from reviewing or using the material seized as part of its criminal investigation. The DOJ appealed, asking the 11th Circuit to lift the part of Cannon’s order that prohibits the use of classified government records and requires the government to disclose those records to the special master. Attorneys for Trump and the Justice Department appeared in Brooklyn Tuesday afternoon for a conference call with the special counsel, U.S. District Judge Raymond Dearie. He was handpicked for the role by Trump and appointed by Cannon, who had been nominated by Trump. But at Tuesday’s court conference, Diery expressed skepticism about what, if any, of the seized Mar-a-Lago records had been declassified by Trump’s lawyers, NBC News reported. The Justice Department has presented “prima facie evidence” that documents with classified markings are, in fact, classified, Dearie said. Unless Trump’s lawyers could provide evidence to challenge that stance, “As far as I’m concerned, that’s the end of it,” Dieri said. The FBI raided Mar-a-Lago on August 8, looking for materials that indicated violations of laws against obstruction of justice and the removal of official records, as well as the US Espionage Act. Federal agents seized more than 100 classified documents in that raid, the Justice Department later revealed. Court documents also revealed that the FBI found four dozen empty folders marked “CLASSIFIED” during the raid. There are 11,000 disputed documents, Dearie said Tuesday. Trump and his allies have maintained in interviews and on social media that he has declassified all government records recovered from Mar-a-Lago. However, the former president’s lawyers did not repeat this claim in court. On Tuesday, however, they told the appeals court that the Justice Department has not proven the documents are classified and argued that a president “has absolute authority to declassify any information.” In a footnote, Trump’s lawyers added: “The fact that the documents contain distinctive markings does not necessarily negate claims of privilege.” They pointed to the fact that, according to the probable cause affidavit used to obtain the Mar-a-Lago search warrant, some classified documents also include Trump’s handwritten notes. “These notes could certainly contain privileged information,” Trump’s lawyers wrote. In his appearance before the special master in Brooklyn federal court on Tuesday afternoon, Trump’s attorney James Trusty said, “We should not be able to compel the release” of statements and witness statements related to the classification issue, the NBC. Deariee replied, “My point is you can’t have your cake and eat it too.”
