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‘You can’t have your cake and eat it’ – Judge challenges Donald Trump’s lawyers to say whether files ‘declassified’

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Former US President Donald Trump speaks during a rally in Youngstown, Ohio, last week. Photo: Reuters/Gaelen Morse

Former US President Donald Trump speaks during a rally in Youngstown, Ohio, last week. Photo: Reuters/Gaelen Morse

Former US President Donald Trump speaks during a rally in Youngstown, Ohio, last week. Photo: Reuters/Gaelen Morse

The US judge named to review documents seized by the FBI last month at Donald Trump’s Florida home pressed Mr Trump’s lawyers yesterday to say whether they plan to assert that the records had been declassified by the former president, as he has claimed.

Judge Raymond Dearie – serving as an independent arbiter, or special master, to vet the more than 11,000 seized documents and potentially recommend keeping some away from federal investigators – asked Mr Trump’s lawyers why he should not consider records marked classified as genuinely classified.

“If the government gives me prima facie evidence (a legal term meaning a fact presumed to be true unless disproved) that this is classified, and you decide not to advance a claim of declassification... as far as I’m concerned that’s the end of it,” Mr Dearie told Mr Trump’s lawyers in his first public hearing on the matter.

Mr Dearie, a senior federal judge in Brooklyn who Mr Trump’s lawyers recommended to serve as special master, did not issue a ruling.

Roughly 100 of the documents seized in the court-approved August 8 search at Mr Trump’s home in the Mar-a-Lago resort in Palm Beach had classified markings. Mr Trump’s attorney James Trusty told Mr Dearie it is too early to say Mr Trump had used his powers while still president to declassify the documents – a stance that Mr Dearie suggested weakened the claim.

“You can’t have your cake and eat it,” the judge said.

The Justice Department is conducting a criminal investigation of Mr Trum p for retaining government records, some marked as highly classified including top secret, at Mar-a-Lago after leaving office in January 2021. Mr Trump has denied wrongdoing and has said that the investigation is a partisan attack.

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Some of the documents seized by the FBI in Donald Trump's Mar-A-Lago mansion . Photo: AP

Some of the documents seized by the FBI in Donald Trump's Mar-A-Lago mansion . Photo: AP

Some of the documents seized by the FBI in Donald Trump's Mar-A-Lago mansion . Photo: AP

Mr Trump has said in social media posts that he declassified the records, but his lawyers have skirted the issue in court.

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The three statutes underpinning the search warrant used by the FBI at Mar-a-Lago make it a crime to mishandle government records, regardless of their classification status.

Mr Dearie is tasked with recommending to Florida-based US District Judge Aileen Cannon, who is presiding over the fight over access to the seized documents, which records may be protected by attorney-client confidentiality or an assertion of executive privilege, a legal doctrine under which a president can keep certain documents or information secret.

Mr Trump’s lawyers argued that now is not the time to present specific information regarding declassification and, in a letter filed ahead of the hearing, said it would force them to disclose a defence to any subsequent indictment – an acknowledgement that the investigation could lead to criminal charges.

Ms Cannon’s order appointing Mr Dearie as special master asked him to conclude his review by the end of November and to prioritise documents marked as classified. The process set out by Ms Cannon called for a Trump lawyer to review the documents, a task for which members of his legal team may lack the necessary US government security clearance.

Mr Trusty asked Mr Dearie to urge prosecutors to let more members of Mr Trump’s team get proper clearance. Mr Dearie said only those who truly need to see classified material should be granted access.

Julie Edelstein, a prosecutor, told the hearing some of the documents are so sensitive even some members of the Justice Department team have not been allowed to see them.


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