Trump’s attorneys late Friday made a new pitch for an independent review of the materials taken from his Mar-a-Lago estate.
In a 12-page filing, they urged a federal judge to appoint a “special master” to prevent the Justice Department from continuing to comb through dozens of boxes taken by FBI agents earlier this month.
The filing, which was billed as a “supplement” to Trump’s meandering initial bid on Monday, was notable, however, for what it didn’t include. It makes no mention of the hundreds of pages of classified documents recovered during the Aug. 8 search and in previous visits by investigators. It also makes no mention of Trump’s claims to have declassified the material. It also eschews the heated criticism Trump has leveled at Bruce Reinhart, the magistrate judge who authorized the search.
Instead, Trump lawyers suggest in the filing that the search may have been improper or even illegal because of indications that investigators were concerned that records covered by the Presidential Records Act were at his Palm Beach home.
“This provides the deeply troubling prospect that President Trump’s home was raided under a pretense of a suspicion that Presidential records were on his property – even though the Presidential Records Act is not a criminally-enforceable statute,” Trump’s filing said.
Trump’s lawyers favorably cited a D.C. appeals court’s 1991 ruling in a dispute over electronic messages exchanged during the end of President Ronald Reagan’s second term, which held that while a sitting president has “virtually complete control” over his records, he must notify the Archivist before disposing of records. The ruling notes that “neither the Archivist nor the Congress has the authority to veto the President’s disposal decision.”
But there are complications with the Trump team’s argument. The 1991 ruling did not discuss criminal enforcement of the Presidential Records Act or address the actions of former presidents. Moreover, that law was not cited as one of the criminal statutes used to justify the Mar-a-Lago search warrant. The three-decade-old D.C. Circuit Court of Appeals decision also offered no view on whether retaining White House records without authority might violate one of the laws the FBI and prosecutors did cite as the basis for the warrant: a broad prohibition on stealing, misusing or concealing government records.