The Trump attorneys filed a reply to the Department of Justice motion against the judge appointing a special master to review documents recovered from Donald Trump’s Florida meatloaf emporium and three-star flophouse–many of which had designations marking them Top Secret or specialty classifications.  Plus, we’ll review some of the more spectacular assertions made by Trump’s lawyers.

Much of the 19-page filing revolves around two very erroneous arguments.  First: Donald Trump has some type of claim to assert executive privilege (which he sorta does) that must be honored (which it does not).  Trump cannot claim executive privilege; he can ask the sitting President to assert executive privilege.  President Joe Biden has not done any such thing for any of the documents found at Mar-a-Lago.

Second:  Trump’s lawyers seem to rely on an erroneous–one might say, fraudulent–reading of the Presidential Records Act.  The PRA, (You can read it here), is very detailed in how presidential records are to be handled, and nowhere in the law does it state that a former President has the right to possess records from his time in office nor can he hide them from federal officials.  Apparently, Trump’s lawyers think the Presidential Records Act is designed to allow any President to determine what belongs to them and what goes to the Archives.

Let’s review the pertinent section of the PRA.  Section 2201, Paragraph 3 states clearly what constitutes a personal record:

(3) The term “personal records” means all documentary materials, or any reasonably segregable portion therof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes—

(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;

(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and

(C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.

Note that nothing in there says a former President can take, say, formerly classified documents with him to his retirement encampment.  It doesn’t mention intelligence on a foreign leader, nor would such information fall into any of the above-listed exceptions.

Repeatedly in the motion, the lawyers refer to the PRA as a protection for an ex-president to keep the records of his choice from his time in office.  It does not, and in fact, it does the opposite.

Among the other things to note:

• Curiously, throughout the entire document, Trump does not assert that he declassified any of the documents in question and frequently refers to the classification stampings on the documents.
• Lawyers repeatedly referred to Trump as “the President,” at one point saying “Thus, there is no question and, indeed there is broad agreement, that the matters before this Court center around the possession, by a President, of his own Presidential records.”  (Page 2)   [Narrator:  “In fact, Trump is not a president, but a former president.”].
• While acknowledging that much of the affidavit was redacted, Trump’s lawyers claim there’s no need to invoke the Espionage Act ’cause… c’mon… there’s just no need to do that:  “Indeed, the warrant intentionally blurs important distinctions in referring to the ability of FBI agents to seize ‘Presidential Records’ (the PRA never concerns itself with traditional classification labels) while wrongfully suggesting the applicability of the Espionage Act and referring to expectations of recovering classified or highly classified documents.” (Page 3)
• Trump’s lawyers claim this is all overblown!  It’s a simple misunderstanding.  If NARA had just called Trump and asked for the material, he would have complied.  “Rather, as contemplated under the PRA, NARA should have simply followed up with Movant in a good faith effort to secure the recovery of the Presidential records.” [Page 3]
• They claim that regardless of if the documents were possessed illegally, the search was illegal so everything found during the search was “fruit of the poisonous tree.”  They do not make a cohesive argument about why the search was illegal.  [Page 5]
• According to the motion, while the Presidential Records Act demands the President preserve all records, it doesn’t really as a former president to do anything:  “[T]he law exhorts a former President to interface with the Archivist to ensure the preservation of Presidential records, but it does not oblige the former President to take any particular steps with respect to those records.”  [Page 6]
• They think Trump, as a former president, can definitely assert executive privilege without challenge.  “Furthermore, acknowledging that executive privilege primarily benefits the United States, Movant continues to have rights related to the assertion of executive privilege.”  [Page 7]
• Trump refers to the documents seized by the FBI as “rummaged proceeds.”  [Page 9]
• Trump complains that the Privilege Review Team assigned by the FBI to review documents for potential attorney-client privilege issues only looked at documents from one location, 45 Office, and that they should have reviewed all the documents.  He also claims the review team worked too fast, clearing documents to go to the investigative team in the two week people Trump’s lawyers sat, presumably, with their thumbs up their collective asses and did nothing.  Because of Trump’s lawyers slowness in responding, Trump claims he should get a do-over and the Special Master should look at all things all over again. [Page 9-12]
• Trump’s solution:  Give him all the documents back to him and let him send to the special master documents that *he* thinks should be covered by any kind of privilege:  executive, attorney-client or the Presidential Records Act (which, again, does not allow him to actually hold on to presidential records from his term in office).  The other stuff, he promises to send back.  [Page 15]
• Trump also wants an unredacted copy of the affidavit used to support the warrant application because he needs to know all the details of the classified information he stole–because he doesn’t know what’s in the documents.
• Last unusual note:  Trump lawyer Christina Bobb is not listed on this motion.  Evan Corcoran is.  This is unusual because Bobb has taken the lead on previous court filings of this type.