The Justice Department’s Need for Speed

The ability of the Department of Justice to analyze approximately 100 of the 10,000 documents seized at Mar-a-Lago is now at the center of its legal wrangling. This focus comes as the government hopes for more thoroughgoing relief from the riders of the United States Court of Appeals for the 11th Circuit.That snapshot of the case emerged from the DOJ’s filing Tuesday afternoon, which fleshed out its request that Judge Aileen Cannon’s order that the investigation freeze be stayed while its lawyers make their appellate case. President Trump’s possession of this “discrete set of just over 100 records marked as classified,” the DOJ argues, “may constitute a crime” and “reasonably could be expected to result in damage to the national security.” They categorize this potential harm as “exceptionally grave.”Dismissing Mr. Trump’s arguments that the dispute over the documents is a mere “storage dispute,” the government avers that the one-time president “cannot plausibly establish any property interest in or privilege claim as to the seized records marked as classified.” Pushing back against Mr. Trump’s claims that the president has the absolute authority to declassify documents and categorize them as his own “personal records,” the DOJ maintains that even if such maneuvers had been executed, they would not merit “an injunction restricting the government’s review and use of records at the center of an ongoing criminal and national security investigation.” The government reiterated that “any record bearing classification markings was necessarily created by the government and, therefore, is not Plaintiff’s personal property,” The documents, it insists, are thus not subject to Mr. Trump’s ongoing custodianship. He has “no plausible property interest that would justify compelling this discrete set of records to be returned to him,” and thus cannot restrain prosecutors from studying them.In seeking to rebut Mr. Trump’s claim that the Presidential Records Act, which makes material available to the chief executive during his time in office, also applies after his term concludes, the government asserts that the law “does not establish that a former President has any property right in Presidential records.”“The Constitution,” the DOJ argues, “vests the incumbent President with the authority to control access to classified information,” and Mr. Trump “cannot plausibly assert executive privilege to prevent the Executive Branch itself from reviewing records that Executive Branch officials previously marked as classified.”The DOJ, aiming to accelerate its probe, tells Judge Cannon that “the government and the public unquestionably have an interest in the timely enforcement of criminal laws, particularly those involving the protection of highly sensitive information, and especially where, as here, there may have been efforts to obstruct its investigation.” In a rejoinder to the judge’s invocation of the “exceptional circumstances” attendant on the investigation of a president, Attorney General Garland’s attorneys insist that the “public is best served by evenhanded adherence to established principles of civil and criminal procedure, regardless of the identity of the parties or the degree of public attention.”

The Justice Department’s Need for Speed

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