Former President Donald Trump has not put forth evidence that he declassified records FBI agents seized from Mar-a-Lago in August, U.S. Department of Justice (DOJ) lawyers told an appeals court in a brief filed late Sept. 20.
Trump “again implies that he could have declassified the records before leaving office. As before, however, Plaintiff conspicuously fails to represent, much less show, that he actually took that step,” government lawyers said in the filing.
“And Plaintiff is now resisting the special master’s proposal that he identify any records he claims to have declassified and substantiate those claims with evidence,” they added.
The DOJ brief was a response to a Trump filing in which lawyers for the former president said that U.S. officials have not proven that Trump held classified records.
Approximately 100 records marked classified were seized from Mar-a-Lago, Trump’s home in Florida. The government and Trump have consistently disagreed over the status of the records.
Lawyers for Trump, and Trump himself, have said he declassified the records before leaving office in 2021.
But the government has maintained no proof supports that position, a theme it returned to in the latest brief.
Trump “gets the law backward by asserting that the government must ‘prove[]’ that records with classification markings are classified. The government has submitted a detailed inventory cataloguing the classification markings, as well as a redacted photograph showing some of the relevant markings. Records marked as classified must be treated as such ‘in the absence of affirmative proof to the contrary,'” DOJ lawyers said, citing a previous ruling in a different case.
“And Plaintiff, as the party seeking relief, bore the burden of proof. Yet despite multiple opportunities, Plaintiff has never actually represented—much less offered evidence—that he declassified any of the relevant records.”
Appeal
The argument was offered to the U.S. Circuit Court of Appeals for the 11th Circuit, which is weighing a request by the government to block Trump’s lawyers and U.S. District Judge Raymond Dearie, a Reagan appointee who is serving as a special master for the records, from seeing the ones marked classified. The government also wants the ability to use the documents in its ongoing criminal investigation into Trump.
The U.S. lawyers noted that Trump lawyers declined to offer proof of declassification to Dearie prior to a hearing held on Tuesday, and in the hearing itself.
James Trusty, a lawyer for Trump, told Dearie during that hearing that he needed to see the documents before advancing the declassification argument.
“We’re not in the position without having seen the physical evidence, and without having a chance to fully explore what these documents purport to be to tell the Court in good faith that I know that I have an argument to be made about declassification,” he said.
“We have not been in a position, nor should we be at this juncture, to fully disclose a substantive defense relating to declassification until we see the documents and have an opportunity to explore our options under a filing under §41(g),” he added later, referring to a motion for the return of seized property.
Dearie said that at some point, if the government offered evidence that the documents remain classified, Trump’s team would have to respond or face a negative ruling.
“If the Government essentially gives me prima facie evidence that these are classified documents and you, for whatever reason, decide not to advance any claims claim of declassification which I understand is your prerogative, I’m left with a prima facie case of classified documents,” Dearie said. “And as far as I’m concerned, that’s the end it.”
From The Epoch Times