Trump Lawyers Claim Docs Could Be Privileged Due to Notes

• Trump’s lawyers say the classified Mar-a-Lago documents may be privileged because they contain his handwritten notes.
• Trump is backing an order preventing the Justice Department from reviewing classified records seized from his home.
• A “special director” appointed to review the records held a preliminary hearing on Tuesday.

The Justice Department made no secret of its calls to access classified material seized from former President Donald Trump’s Mar-a-Lago estate. It argued that without the ability to review these records, “the government and the public will suffer irreparable harm”.

But on Tuesday, Trump’s lawyers said those concerns — and clear classification markers — may not be enough to overcome the former president’s pen or the power of Sharpie.

“The fact that the document contains classification marks does not necessarily negate the claim of privilege,” Trump’s lawyers said in a new filing to the U.S. Court of Appeals for the 11th Circuit. They went on to point out that some classified records seized from Mar-a-Lago “purportedly contain handwritten notes by President Trump,” according to court documents.

“These notes may of course contain privileged information; further supporting the need for independent third-party review of these documents,” they added.

The filing on Tuesday was in response to the Justice Department’s appeal of a court order to temporarily halt the review of some 11,000 documents seized from Mar-a-Lago, including more than 100 that were marked confidential.

Judge Erin Cannon declined to uphold her ruling last week and appointed former Chief Judge Raymond Dearie of the Brooklyn federal court as special referee — an outside arbitrator who reviews the material and Filter out any content or executive privilege that may be covered by attorney-client.

In appealing Cannon’s order, the Justice Department said it “impedes the administration’s efforts to protect national security.” But the former president’s lawyer said the handwritten notes trumped the urgency of the concern.

Trump has also frequently claimed without evidence that he has a “routine order” to declassify all records transferred to Mar-a-Lago. But a dozen of his former aides told CNN they were unaware of such an order, and Trump’s legal team has not made the request in any documents.

In court documents, Trump’s lawyers did not respond to his claims of declassification, but they claimed that the current president has absolute authority to declassify the information. On Monday, they said the government “has not yet demonstrated” that the records marked with the classifieds remain classified, adding that “this issue will be determined at a later date.”

Newly appointed special director Dearie held a preliminary hearing on Tuesday to discuss how his review process will unfold over the next two months. Before that hearing, Trump’s lawyers objected to Derie’s request for more information on the classification status of the seized documents.

The response was notable as Trump’s lawyers acknowledged the potential for prosecution over charges related to the removal of records from the White House.

His lawyers argued that turning over information about the classification status of the records would force Trump to “comprehensively and specifically disclose the defenses he may use in “subsequent prosecutions.”

The FBI searched Mar-a-Lago on Aug. 8 as part of an investigation into possible violations of the Espionage Act and other laws, according to an unsealed search warrant. In court filings, the Justice Department noted that the Espionage Act makes it a crime to keep defense-related government records, regardless of their classification status.

The Justice Department investigation is also examining possible violations of laws that criminalize the concealment, removal and destruction of government records — regardless of the level of secrecy.