Special master asks Trump’s lawyers if he declassified records in FBI search

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NEW YORK, Sept 20 (Reuters) – The US judge appointed to review documents seized last month by the FBI from Donald Trump’s Florida home raised doubts on Tuesday about the former president’s claim that he should not yet review whether the records were classified or not.

In his first public hearing since his appointment as special master, Judge Raymond Dearie – serving as an independent arbiter, or special master, to vet the documents – pressed Trump’s lawyers about whether they had any evidence to show Trump declassified the records.

Trump is under investigation for retaining government records, some marked as highly classified, at the Mar-a-Lago resort in Palm Beach, his home after leaving office in January 2021. Trump has denied wrongdoing and has said without providing evidence that the investigation is a partisan attack.

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Trump has claimed in social media posts he declassified the records, but his lawyers have not made such a statement in court filings.

“You did bring a lawsuit,” Dearie told Trump’s attorney James Trusty after Trusty said the lawyers were “not in a position” to say the former president declassified the documents until they can first review the records.

Dearie, a senior federal judge in Brooklyn, will help decide which of the more than 11,000 documents seized in the Aug. 8 search at Mar-a-Lago should be kept from the Justice Department’s criminal investigation into the former president’s handling of the documents.

Dearie will recommend to US District Judge Aileen Cannon, who is presiding over the fight over access to the seized documents, which records may fall under attorney-client privilege or an assertion of executive privilege, which allows a president to withhold certain documents or information.

Tuesday’s hearing came a day after Dearie documents circulated a draft plan to both sides on Monday which sought details on Trump allegedly declassified.

In a letter filed ahead of Tuesday’s hearing, Trump’s lawyers argued it was not time to address Dearie’s questions, and it would force them to disclose a defense to any subsequent indictment – an acknowledgement that the investigation could lead to criminal charges.

On Tuesday, Trusty told Dearie that he believes Dearie’s request to provide a declassification defense goes beyond the scope of what Cannon asked him to do.

Dearie said he was “taken aback” by that claim.

“I think I’m doing what I’m told,” Dearie said.

The Justice Department on Friday appealed a portion of Cannon’s ruling, seeking to stay the review of roughly 100 documents with classified markings and the judge’s restricting FBI access to them.

Federal prosecutors said the special master review ordered by the judge would hinder the government from addressing national security risks and force the disclosure of “highly sensitive materials.”

With that appeal still pending, it is still unclear whether Dearie’s review will go forward exactly as Cannon instructed.

On Tuesday, Trump’s legal team filed its response to the Atlanta-based 11th US Circuit Court of Appeals, opposing the government’s request and calling the Justice Department’s investigation “unprecedented and misguided.”

In their 40-page filing, Trump’s attorneys said the court should not take the Justice Department at its word that the roughly 100 documents in question are in fact still classified, and said the special master should be permitted to review them as a step towards ” restoring order from chaos.”

In Cannon’s order appointing Dearie as special master, she asked him to conclude his review by the end of November. She instructed him to prioritize the documents marked classified, though her process calls for Trump’s counsel to review the documents, and Trump’s lawyers may not have the necessary security clearance.

The Justice Department has described the special master process as unnecessary, as it has already conducted its own attorney-client privilege review and set aside about 500 pages that could qualify. It opposes an executive privilege review, saying any such assertion over the records would fail .

The August FBI search came after Trump left office with documents that belong to the government and did not return them, despite numerous requests by the government and a subpoena.

It is still unclear whether the government has all the records. The Justice Department has said some classified material still could be missing after the FBI recovered empty folders with classification markings from Mar-a-Lago.

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Reporting by Karen Freifeld and Luc Cohen in New York, additional reporting by Sarah N. Lynch in Washington; Editing by Scott Malone, Will Dunham, David Gregorio and Chizu Nomiyama

Our Standards: The Thomson Reuters Trust Principles.

Luc Cohen

Thomson Reuters

Reports on the New York federal courts. Previously worked as a correspondent in Venezuela and Argentina.

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