President Trump told the Eleventh Circuit Court of Appeals in a Tuesday filing that as a former President, he still gets to say which government records belong to him and which do not.
It’s mostly a rehash of claims that Trump has made throughout his bid to slow down the DOJ investigation into his decision to take reams of federal records — some highly classified — from the government. He asked the appeals court to reject a request from the DOJ to allow its investigation to go forward, as it pertains to classified records seized from Mar-a-Lago in August.
Much of Trump’s argument focuses on the question of classification.
He has conspicuously declined to state that he declassified the records that he took with him to Mar-a-Lago, and potentially elsewhere, after his term in office expired in January 2021.
In a sense, Trump’s statements and representations to the Eleventh Circuit miss the point: the DOJ obtained a grand jury subpoena, and then a search warrant, for records that bore classification markings. That is separate from the question of whether the records themselves are classified or not.
But in the Tuesday filing, Trump asserted that even if the documents he took bear classification markings, they may still belong to him.
“The Government also argues incorrectly that President Trump cannot have a possessory interest in documents with classification markings, and therefore, the Government is likely to succeed on appeal,” Trump’s lawyers wrote.
He added that he is entitled to still possess the records “irrespective of alleged classification markings.”
Trump also reasserted a line of argument that would put the ball in the DOJ’s court to prove that the records are classified.
Judges traditionally give the executive branch broad deference to say whether information held by the government is classified, and at what level.
Trump wants the Eleventh Circuit to agree with him that the DOJ has yet to “prov[e] this critical fact.”
The Eleventh Circuit case also saw a group of Republican state attorneys general file notice on Tuesday that they would submit an amicus brief in support of Trump. Texas Attorney General Ken Paxton is leading the effort.
Trump emphasized in the brief that he has the utmost care for matters of national security — just that the records, even if marked classified, belong to him.
“As noted previously, President Trump does not oppose any action advancing the legitimate national security interests of the United States,” one footnote reads.
Read the brief here:
