The materials seized
You don’t get to “argue” that a law is not a law. At least, you do if you’re a lawyer and in the appropriate court, but you don’t get to if you’re just some asshole who wants to get away with stuff.
The senior federal judge tasked with reviewing the materials seized by the FBI from Donald Trump’s Mar-a-Lago estate sharply questioned the former president’s attorneys Tuesday during their first hearing in his courtroom.
Judge Raymond Dearie repeatedly challenged Trump’s lawyers for refusing to back up the former president’s claim that he declassified the highly sensitive national security-related records discovered in his residence.
…
Trump has argued that the 11,000 documents taken from Mar-a-Lago by the FBI pursuant to a search warrant last month were rightfully in his possession, including about 100 bearing classification markings that suggest they contain some of the nation’s most closely guarded intelligence.
But there’s a law that says those documents are government property, not his personal property. We don’t get to steal people’s cars and then “argue” that they’re rightfully in our possession. That’s not arguing, it’s bullshitting.
I’m doubtless wrong about that legally speaking; I’m just ranting. Sometimes one has to rant.
I’d say the issue here is not so much whether you get to argue something, but when you have to offer facts to back up your argument.
As the Special Master noted:
— This is a civil case brought by Trump as the plaintiff. He bears the burden of proof. He can invoke his 5th Amendment rights or otherwise refuse to offer facts, but that has consequences for his civil case.
— The government has offered sufficient evidence to make a prima facie case that the documents are classified, meaning that unless Trump has some evidence of his own to offer, the government is going to win that point
— In court, you have to actually offer admissible evidence. If Trump wants to claim he declassified those documents, he or someone else needs to offer testimony setting for the how and when. If he wants to argue that the government is lying or mistaken about those classifications, there needs to be evidentiary support. Hints and innuendoes and vague statements by third parties on cable news shows or social media don’t suffice.
In the public arena, Trump has been playing a coy game of letting surrogates assert or suggest that he declassified the documents. In court you have to put up or shut up (unless of course you have a hack judge who’s going to ignore such things). His lawyers have tried to suggest in court filings that maybe the classification is in doubt, but that isn’t going to cut it with a non-hack judicial officer.
I concluded with the disclaimer just for you!
I was thinking though not just of the classification issue but the (newish) law that makes all White House paperwork the property of the government and NOT of the incumbent or previous incumbent. From what I’ve seen both are in play. The National Archive is interested as well as the intel agencies.
Found this gloss on twitter: https://twitter.com/AnaCabrera/status/1572308399777353730
I agree with Screechy Monkey #1 and Steven #3, as CNN reported yesterday, the special master Judge Raymond Dearie put the burden on Trump’s lawyers to play their “declassification” card (worded slightly differently than the tweet above):
https://www.cnn.com/2022/09/20/politics/takeaways-mar-a-lago-special-master-hearing/index.html
Yeah, I didn’t comment on the Presidential Records Act stuff because as you said up front, you can of course challenge a statute in court, so that’s good — rant away!
And the 11th Circuit just granted the DOJ’s request for a partial stay of Judge Cannon’s order. The decision is a pretty comprehensive dismantling of Judge Cannon and Trump’s position.
So, absent a higher court stepping in, DOJ can resume its criminal investigation, and is not obligated to submit confidential documents to the special master.
Hence I was riveted to the news last night. I especially loved the part where everyone kept saying “This has been a very very bad day for Donald Trump.”