Judge asks Trump’s lawyers if he declassified records during FBI search

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NEW YORK, Sept 20 (Reuters) – The U.S. judge appointed to review documents seized by the FBI last month from Donald Trump’s Florida home on Tuesday urged Trump’s lawyers to say whether they plan to claim that the records had been declassified by the former president, as he claimed.

Judge Raymond Dearie — acting as an independent arbiter, or special master, to review the more than 11,000 seized documents and potentially recommend keeping some of them away from federal investigators — asked Trump’s lawyers why he should not consider marked documents as truly 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 apply for declassification…as far as I concerns is the end,” Dearie told Trump’s attorneys during his first public hearing on the matter.

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Dearie, a senior federal judge in Brooklyn who has been recommended by Trump’s attorneys to serve as a special master, did not issue a ruling.

About 100 of the documents seized in the August 8 court-approved search of Trump’s home in the Mar-a-Lago resort in Palm Beach had classified marks. Trump’s attorney, James Trusty, told Dearie it was too soon to say Trump used his powers while still president to declassify the documents – a stance Dearie suggested weakened the claim.

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

The Justice Department is conducting a criminal investigation into Trump for keeping government records, some marked as highly classified, including top secret, at Mar-a-Lago after he left office in January 2021. Trump has denied any wrongdoing and said without providing evidence that the investigation is a partisan attack.

Trump said in social media posts that he had declassified the records, but his attorneys skirted the issue in court.

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

Dearie is tasked with recommending to Florida-based U.S. District Judge Aileen Cannon, who is presiding over the fight for access to seized documents, which records can 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.

Trump’s lawyers argued that now was not the time to present specific information regarding the declassification and, in a letter filed ahead of the hearing, said it would require them to disclose a defense to any subsequent impeachment. – an acknowledgment that the investigation could lead to criminal charges. .

Cannon’s order appointing Dearie as special master instructed him to conclude his review by the end of November and to prioritize documents marked as classified. The process set out by Cannon called for a Trump lawyer to review the documents, a task for which members of his legal team may not have the necessary US government security clearance.

Trusty asked Dearie to urge prosecutors to let more members of Trump’s team get proper clearance. Dearie said only those who really need to see classified documents should have access to them.

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

On Friday, the Justice Department appealed to the 11th United States Circuit Court of Appeals, based in Atlanta, the portion of Cannon’s decision authorizing the special master to check records marked as classified and l restricted FBI access to them.

Trump’s legal team on Tuesday opposed the government’s request and called the Justice Department’s investigation “unprecedented and flawed.”

The department opened its investigation after the National Archives, the US agency responsible for preserving government records, attempted to recover missing government assets from Trump and received 15 boxes containing mixed classified documents.

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Reporting by Karen Freifeld and Luc Cohen in New York, additional reporting by Sarah N. Lynch in Washington; Editing by Scott Malone, Will Dunham, David Gregorio and Chizu Nomiyama

Our standards: The Thomson Reuters Trust Principles.

Luke Cohen

Thomson Reuters

New York Federal Courts Reports. Previously, he worked as a correspondent in Venezuela and Argentina.