Suddenly, they claimed the documents were there, but they were Trump’s “own presidential records.” And not only did the Trump team again refuse to claim in court that he had declassified the documents; the team said it would be “appropriate” for the special handler they want to review the documents “to have a Top Secret security clearance.”
This isn’t the first time Trump’s legal strategy hasn’t matched his extrajudicial bluster. But it was the most significant indication yet of the asymmetry between the two.
In the filing, Trump’s attorneys repeatedly refer to the documents as actually being present at Mar-a-Lago, while suggesting they could have been there legitimately.
It begins with a reference to the idea that the FBI criminalizes “a former president’s possession of personal and presidential records” and later refers, again, to “lawful possession of presidential documents”.
He derides the idea that Trump “has ‘not the right’ to possess presidential documents” and that he possessed them “illegally”.
He says the National Archives “should have just followed with [Trump] in a good faith effort to ensure the recovery of presidential records.
He also briefly suggests that it was simply a dispute between Trump and the Archives over the “contents of the Presidential Library.”
The apparent acknowledgment that the documents were in fact in Trump’s possession followed a social media post from Trump on Wednesday that also appeared to admit he had the documents classified. Asset described them as “cartons,” while challenging the officers who spread them on the carpet and take a picture.
Perhaps most notable in the filing, however, was the continued absence of a claim that Trump had declassified the documents. He said so publicly, and his lawyers made gestures to that effect in their various public comments. But Trump’s legal team has repeatedly declined to claim it in court proceedings, dating back to the early days of the dispute in late 2021 and early 2022, the government said Tuesday. Trump’s legal team also made no mention of the claim in a May letter or in the lawsuit filing seeking the special master last week. (In that May letter, Trump’s attorney said Trump had absolute authority to declassify documents, but did not claim he actually did so.)
His absence on Wednesday night was particularly acute, however, given that the government proactively questioned that claim in its own filing the day before. The government had said that Trump and his attorneys did not claim the documents were declassified, either in January, when Trump voluntarily handed over some documents, or in June, when his representatives handed over others and claimed – wrongly, it seems – that Trump had more documents with classification marks.
Rather than address the government’s summary of the case, Trump’s attorneys said in a footnote, “Movant does not at this time address any misleading or incomplete statements of purported ‘facts’ made by the government in its response on pages 3 to 14.” (The government made these statements on pages 4 and 8 of its brief.)
Indeed, the government had argued in its own filing that Trump’s legal team treated the documents as classified in June, delivering them in an envelope that was “double-wrapped in duct tape.”
Even beyond that, Trump’s legal team also now acknowledges in its own words that the documents could be sensitive enough to warrant a special handler who has a very high security clearance.
“Movant also agrees that it would be appropriate for the special master to have a Top Secret/SCI security clearance,” Trump’s filing said. (SCI refers to “compartmentalized sensitive information” – meaning it’s so sensitive that only those with a proven need to see it can see it.)
It would seem quite useless if these documents had indeed been declassified.
Of course, no evidence remains that they actually were. And it’s not strictly relevant to whether Trump broke the law; the relevant laws do not require the information to have been classified.
But it reinforces the fact that Trump’s legal strategy appears to involve backtracking on some of his biggest claims and suggestions — something worth bearing in mind as Trump continues to file them.