(Bloomberg) -- Donald Trump's attorneys told a judge on Monday that they oppose the US Justice Department's request to continue using documents with classified markings seized from the former president's Mar-a-Lago estate without being reviewed by a neutral third party.
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In Monday's filing, his legal team argued that there was "disagreement" about the classification status of the seized materials and they emphasized that a president has broad power to declassify information. But they stopped short of repeating Trump's claim that even if the records had classified markings, it couldn't be illegal because he declassified them all.
"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 attorneys say in the filing.
Opposition to the government's bid to continue use of about 100 documents labeled as classified as part of an investigation into alleged mishandling of government records was an expected move by Trump. In the weeks since FBI agents executed a search warrant at Trump's home, he and his supporters launched a barrage of attacks on the investigation, the DOJ officials involved, and the government's arguments in court.
Trump's opposition means that US District Judge Aileen Cannon will once again have to choose a side. Cannon previously granted Trump's request for an outside special master to review the documents and temporarily barred federal investigators from using the seized materials. The government then filed a request to exclude a small pool of just over 100 documents that they say feature classified markings, including some with the highest top-secret classification.
The Justice Department previously told the judge that it would likely ask the 11th US Circuit Court of Appeals to immediately intervene if she refused to carve out classified materials from her order. DOJ already filed a full appeal of her original ruling.
Cannon, a Trump appointee, granted the former president's request for a so-called special master to review materials seized from his Florida home on Aug. 8 for any information covered by attorney-client confidentiality or the executive privilege afforded presidents. She also temporarily barred the government from using the documents to develop its criminal investigation.
The Justice Department last week asked for the stay while they appealed, saying the ruling had also forced intelligence agencies to put on hold the risk assessment to national security of the classified material potentially having been exposed. The government's filing cited confusion and inconsistencies with Cannon's order.
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Trump's lawyers wrote that Cannon's order pausing the use of the seized documents in the criminal probe was "a sensible preliminary step towards restoring order from chaos" and accused DOJ of trying "to skip the process and proceed straight to a preordained conclusion."
National security law experts have cast doubt on the claim that Trump declassified the records -- particularly since he hasn't presented evidence in writing of exactly what he declassified, how he did it, and when -- and his lawyers have so far shied away from making that assertion outright in court. But they did argue that the court has not yet deemed the materials as classified.
In Monday's filing, his lawyers wrote, "The Government's position therefore assumes a fact not yet established."
Trump's lawyers also argued that he has "an unfettered right of access" to "his Presidential records" and had wide discretion to decide what records were "personal" versus "presidential."
His filing quoted from an earlier court case where a group unsuccessfully challenged former President Bill Clinton's decision to categorize tapes of interviews he made with a historian while in office as "personal" records, meaning they didn't go to the National Archives and Records Administration when he left office. The Justice Department has argued that as a former president, Trump has no claim to records that belong to the government.
Finally, Trump's lawyer disputed the Justice Department's claim that they couldn't "disentangle" the intelligence review from the criminal investigation.
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As the fight over the subset of classified documents goes forward, Cannon is separately in the process of figuring out who should serve as the special master. The Justice Department said it wouldn't seek an immediate stay of the special master's review of the bulk of documents without classification markings, even if it disagreed with the judge's decision.
Attorneys for Trump and the government filed dueling suggestions for a special master Friday, telling the judge that while they didn't officially disagree on the choices that they would update the court on their opponents' candidates on Monday. They did say in the filing that they remain far apart on the scope and the length of the review.
Trump indicated in that filing that he would not back down on pushing for the special master to go through all the records, including those with classified markings. He also insists the special master should evaluate potential executive privilege claims, while the DOJ opposes that idea.
Other areas of disagreement include the timeline -- DOJ wants the review done by Oct. 17, Trump wants three months -- and the two sides also disagree on who should pay. Trump wants to split the special master's fees and expenses with the government, while DOJ says that because Trump asked for the special master, he should foot the bill.
(Updated with details from Trump's filing starting in second paragraph.)
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