“This investigation of the 45th President of the United States is both unprecedented and misguided. In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records,” starts the response by Trump’s lawyer filed with the court Tuesday to the Department of Justice’s filing with the 11th Circuit Court in an appeal of Trump-appointed Judge Aileen Cannon’s mindboggling decision.

• The 40-page filing was done in a large font with generous spacings and margins in an obvious attempt to add literal heft to the filing to compete with the legal-theory-packed filings by the Department of Justice.
• Trump passively denies classified documents were at Mar-a-Lago, referring to them as “what the Government unilaterally contends are ‘classified records'” (page 1) or “records bearing classification markings” (page 2).  Trump has claimed in interviews done not under oath that he has declassified the documents, a statement neither Trump nor his lawyers have made in sworn court filings.

• Much of the filing relies on Trump-appointed federal judge Aileen Cannon’s statements about how national security and the needed national security assessment would not be harmed by an unspecified delay caused by a special master reviewing the documents.  However, Cannon’s decision demonstrates a complete ignorance of how national security operations occur, which is not surprising given that Cannon had never worked in national security and had apparently never been the “first chair” in a court case prior to becoming a judge.  Incidentally, Cannon listed her membership in the “Delta Delta Delta” fraternity–a college campus social sorority–on her credentials for Senate review.
• Trump’s lawyers claim that Cannon’s ruling cannot be challenged; they’re apparently unaware of the appeals process.  Humorously, the filing refers to boilerplate language Cannon used in her decision– “…ORDERED AND ADJUDGED…” “…APPOINTED…” and “…TEMPORARILY ENJOINED….”–to claim the Appeals Court has no jurisdiction because Cannon has ruled and, Trump’s lawyers argue, her ruling cannot be challenged.
• Trump’s legal squad shoot themselves in the foot in a couple of arguments.  First, they claim that the Appeals Court can only act if there “was a clear abuse of discretion” [existing emphasis].
• Second, they refer to Executive Order 13526 (page 12), signed by President Barack Obama in 2009, that outlines the proper procedure to declassify documents and information.  Donald Trump did none of these steps, so his lawyers–while acknowledging there is an established procedure for declassifying documents–are tacitly admitting to the Court that (1) there was a procedure and (2) Donald Trump did not follow that procedure, so none of the documents were, in fact, declassified.
• Third, with the use of one word, Trump’s lawyers explicitly acknowledge Trump no longer has any power to declassify documents or “read in” people to classified material:  “Yet, the Government apparently contends that President Trump, who had [my emphasis] full authority to declassify documents, ‘willfully’ retained classified information in violation of the law” (page 13).
• The filing seems to claim that a former president can simply claim national security information can be redesignated as “personal records” (page 14), claiming, “[T]he PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records. Under the statute, this responsibility is left solely to the President.”  This is, of course, fanciful, given that documents created within the Executive Branch for national security purposed are not, by definition, “personal materials.”
• A unique argument from Trump’s team on page 15, that the documents in question cannot belong to the Department of Justice: “What is clear regarding all of the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with NARA, but not with the Department of Justice.”  The problem with the argument?  No one is claiming the documents are DOJ property; the DOJ is the law enforcement arm of the entire federal government, to which the documents belong.
• The fact that classified documents–including those at the highest level of security–were stored in an unsecured location while Trump lied about his possession of them is no big deal, Trump’s lawyers claim, saying prosecutors are just bringing up old issues like a boyfriend have a fight with his partner:  “Instead of detailing any irreparable harm it faces going forward, it attempts to shift the focus to past events, claiming that ‘the materials were stored in an unsecure manner ….’ This is simply irrelevant.”  In reality, the fact that Trump possessed these documents and kept them at various unsecured locations is literally the fact that proves Donald Trump should not be in possession of any government documents–classified or not–is directly relevant for the need to conduct a comprehensive review of all the documents, whether they’re classified or not.
• Trump’s lawyers rely on Cannon’s repeated statements in her decision that Donald Trump must be held to a different standard of law because he’s a former president.  This is, of course, not true, given that former presidents have no additional authority under the Constitution to possess government documents or classified material without the express permission of the sitting President of the United States.
• Trump’s lawyers repeatedly downplay the national security breach, saying a delay of weeks or months won’t have any impact on national security or the needed assessments of damage and risk:  “The injunction does not preclude the Government from conducting a criminal investigation, it merely delays the investigation for a short period while a neutral third party reviews the documents in question” (page 19).