The filing acknowledged that classified material was found at Mar-a-Lago, but argued that it should not have been cause for alarm — and should not have led to the search of Trump’s Florida residence earlier this month.
The Justice Department had said in court filings that the search was undertaken after the FBI developed evidence that Trump’s team had concealed materials after claiming that all classified materials had been turned over in June.
“The purported justification for the initiation of this criminal probe was the alleged discovery of sensitive information contained within the 15 boxes of Presidential records,” Trump’s lawyers wrote. “But this ‘discovery’ was to be fully anticipated given the very nature of Presidential records. Simply put, the notion that Presidential records would contain sensitive information should have never been cause for alarm.”
Trump’s lawyers argue that under the Presidential Records Act, the Archives should have followed up with a good faith effort to secure recovery of presidential records, rather than referring a criminal probe to the Justice Department.
Hearing Thursday over special master
Trump filed the lawsuit early last week — 14 days after the search warrant was executed — claiming that his constitutional rights had been trampled in the search. He demanded that a special master be appointed to review the materials seized by the FBI from Mar-a-Lago. A special master is a third-party attorney who is appointed by courts in some situations — often those where attorneys’ offices have been searched — to review evidence obtained by the government and filter out privileged materials that should be kept out of the hands of investigators.
The Justice Department argued in the Tuesday filing that appointing a special master would be both “unnecessary” and a move that would impede the criminal probe as well as the risk assessment being undertaken by the intelligence community. Prosecutors argued that Trump failed to overcome the procedural thresholds required in making the ask.
The DOJ said Trump’s scenario — one mainly focused on questionable claims of executive privilege — was much different than the situations where special masters were typically appointed. In those cases, materials covered by attorney-client privilege is the main concern.
Prosecutors have previously told the court that “a limited set of materials” potentially covering attorney-client privilege were recovered in the search. The DOJ’s internal filter team has already finished its work of segregating those materials from what is shared with investigators, the department said Tuesday, and the rest of the documents have already been reviewed by the agents working on the case.
This story has been updated with additional details.