The Justice Department sought to call the bluff of former President Trump for statements about declassifying the records found at his Florida home, criticizing his legal team for insinuating — but failing to fully assert — the claim.
The response came after Trump’s attorneys on Monday repeatedly noted that Trump had the power to declassify records but stopped short of saying he actually did so despite a month of the former president airing the excuse.
“Plaintiff principally seeks to raise questions about the classification status of the records and their categorization under the Presidential Records Act (“PRA”). But plaintiff does not actually assert—much less provide any evidence—that any of the seized records bearing classification markings have been declassified,” the Justice Department wrote in its latest brief.
“Such possibilities should not be given weight absent plaintiff’s putting forward competent evidence,” it added.
Though presidents have broad power to declassify records, doing so sets off a chain of events, as the intelligence agencies that manage such records must take additional steps.
Trump’s legal team on Monday argued that the fact that a document taken during the search at Mar-a-Lago was labeled classified does not mean that status was maintained. All told, authorities have recovered more than 300 classified records from the property since January.
“The government’s stance assumes that if a document has a classification marking, it remains classified irrespective of any actions taken during President Trump’s term in office,” Trump’s legal team wrote.
“There is no legitimate contention that the chief executive’s declassification of documents requires approval of bureaucratic components of the executive branch,” it added.
The Department of Justice (DOJ) argued that Trump’s team sought to “change the subject by holding out the possibility that he could have declassified some of the seized records.”
“Even if plaintiff had declassified any of these records while he was president—a proposition that plaintiff does not specifically assert in any of his filings in these proceedings, in a sworn declaration, or through any evidence—any record bearing classification markings was necessarily created by the government and, therefore, is not plaintiff’s personal property,” it wrote.
Trump’s desire to keep them would also not outweigh the government’s need to review them both for national security purposes and as part of its broader criminal investigation.
The government also offered one of its most concise rejections yet of Trump’s claim that he could maintain any sort of executive privilege over the government records he stored at his home.
“Plaintiff offers no response to the government’s multiple arguments demonstrating that he cannot plausibly assert executive privilege to prevent the executive branch itself from reviewing records that executive branch officials previously marked as classified,” the DOJ wrote.