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One of the top secret/secure compartmented information documents found at Mar-a-Lago

Photo by US Justice Department

The Trump response to the Justice Department's filing with Judge Aileen Cannon on her order for the special master is 21 pages long, but they don’t waste any time getting right into the meat of their ridiculous crap-ola. On page one, Trump asserts that the “Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records.”

Got that? On line 3 of the filing, Trump and his lawyers are telling the judge that the papers he turned over to the National Archives in January, and the classified documents he turned over to the DOJ in June, and the classified documents seized by the FBI on August 8 – all of them, irrespective of the fact that they were all the work-product of the federal government and by law belong to the federal government, well, Judge Cannon, they are mine.

One page later, it gets worse. Trump’s lawyers refer to the classified documents in question – you know, the ones we’ve all seen in the photograph taken by the FBI in Trump’s office – as “purported ‘classified records.’” In other words, they are contesting that the documents marked classified as Top Secret/Sensitive Compartmented Information and others marked Top Secret and Classified, are not classified documents at all. The filing then goes on to contest the government’s contention that “if a document has a classification marking, it remains classified irrespective of any actions taken during President Trump's term in office.”

Gee, what could those “actions” have been? Well, what they are apparently indicating without coming right out and saying so is that Trump declassified the documents during the time he served as president, despite the complete lack of evidence that this is true.

When documents are declassified, they are marked as such in order that they are permitted to be held and seen by persons without security clearances. None of the documents Trump turned over, nor any of those seized by the FBI, have those declassification markings.

Politico pointed out on Friday that in the joint filing by the government and Trump’s lawyers proposing potential special masters, “Trump’s attorneys once again did not echo Trump’s claim that he had declassified any of the materials he possessed at Mar-a-Lago.” Well, folks, that stance is out the door, because in today’s filing, Trump is not only asserting that the classified documents are “Presidential records” under the legal definitions of the Presidential Records Act (PRA), but they are only “purported classified documents.”

The Trump filing then dives into a legal analysis on the “merits” of the government’s claims, under subheads like “APPLICABLE LAW,” and “PRESIDENT TRUMP IS LIKELY TO SUCCEED ON THE MERITS.” Don’t you just love that one? They refer to the former president as “President Trump,” and that appellation carries on throughout the rest of the filing: There were “materials seized from President Trump,” the argument in the filing was “raised by President Trump.” They tell the judge that “President Trump clearly has an individual interest in and need for the seized property.”

It’s “President Trump” this and “President Trump” that, almost as if they figure if they keep referring to him as “President Trump” enough times, the judge is more likely to agree with the fiction that he is somehow still “President Trump” and not a civilian plaintiff engaged in a lawsuit with the government. They even go so far as to assert, “The Government contends that President Trump can have no such interest in the purported ‘classified records.’ But, again, the Government has not proven these records remain classified. That issue is to be determined later.”

The don’t specify when “later” is, but presumably they are making a not terribly subtle reference to that time dearly hoped for and conspired for by the former president when he will be returned to office by fiat, or some other magical way, and then he can do with all of the documents what he wishes, because of course, as he has said repeatedly, “they are mine.”

And then there is this: “However there still remains a disagreement as to the classification status of the documents. The Government’s position therefore assumes a fact not yet established. This Court’s Order exercising jurisdiction did not make findings as to the classification status of any documents. Further, whether it was lawful for the Government to seize those documents has yet to be determined by a court of competent jurisdiction.”

Let’s take a moment to parse this jewel: they are alleging that the government “assumes a fact not yet established” that the classified documents we’ve all seen – including, presumably, Judge Cannon – in the FBI photograph showing multiple documents with multiple and very serious classification markings. And then, incredibly, they are questioning whether the FBI search and seizure of the documents from Mar-a-Lago was “lawful” because it has not been “determined by a court of competent jurisdiction.”

Wow. A federal judge – albeit a different federal judge from Judge Cannon – issued a legal search warrant in response to a legal request backed up by uncontested reasons for probable cause, and yet that judge was allegedly “not competent” to do it. Moreover, they are indicating that this is yet another issue they will pursue in some future lawsuit not yet filed by Trump.

It gets worse by increments and then by tsunami. Trump asserts that “The president has the power to declassify documents,” even though he is not the president anymore – which, if you read the wording of the filing, they are contesting, as well. Then they assert that “A former president has an unfettered right to access Presidential records,” using an exceedingly tortured reading of the Presidential Records Act (PRA) which conveniently omits the fact, very much in evidence, that the “presidential records” in question were removed from the White House under circumstances that do not comport with the PRA, and moreover that the classified records removed from the White House were not stored in the secure conditions mandated by law for such highly sensitive documents.

They go on to assert that contrary to the DOJ’s exhaustive explanation of why a national security intelligence assessment cannot be carried out without the assistance of the FBI, the judge’s order does not forbid the FBI from assisting in the intelligence assessment, which is, again, a tortured reading of Judge Cannon’s original order which clearly does bar the FBI from even looking at the seized documents or using them when interrogating witnesses.

You would think, reading the new Trump filing, that his lawyers have trouble reading and understanding the English language, but perhaps it is the case that they understand something about Judge Cannon which is “not in evidence” in this case, i.e., that she is such a profoundly entranced Trumpazoid that she will read her own words in her previous order about appointing a special master exactly like Trump says she should, and of course reject the government’s motion to exclude the 100 classified documents from her order.

Trump contends that the government and the people will not suffer “irreparable harm” by the appointment of a special master, but of course, “PRESIDENT TRUMP AND THE PUBLIC WOULD BE HARMED BY THE STAY,” (emphasis in the Trump filing.) And why, you might ask, would this be so? Well, what we’re dealing with here, according to the Trump filing, is an “investigation of a former President of the United States by the administration of his political rival.”

What happened to “President Trump?” Well, all of a sudden in their filing the Trump lawyers came up against a brick wall: the administration of the actual President is investigating the “former president,” as their wording grudgingly admits. There is simply no other way to put it, unless they wanted to assert that one president is investigating another president in a country for which the Constitution mandates that there can be only one president at a time. Amazingly, given the ridiculous depths into which the entire the Trump filing dives, it seems that even Trump lawyers are unwilling to suffer the immediate disapprobation that would attend to such a patently absurd contention.

Even though this filing by the Trump legal team does not specifically echo Trump’s claim that he “automatically declassified” all of the documents seized at Mar-a-Lago, they certainly point in the direction of bringing up that contention in a future lawsuit. In fact, if there is a thread throughout the filing it is the dangling of issues that might be brought up either when the DOJ appeals, or in more lawsuits Trump is no doubt contemplating.

It is what you would expect from a man who has his excellent team of lawyers and the excellent team of Big Mac chefs at the local McDonald’s on speed dial.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Reprinted with permission from Lucian Truscott Newsletter

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