Former President Donald Trump’s big plan to stall the investigation into the Mar-a-Lago classified documents scandal isn’t going the way he might have hoped.
On Tuesday, a federal judge pushed back against Trump’s lawyers for hinting that the documents might be declassified while refusing to say whether they definitely had been. In other words, Trump’s own lawyers balked at backing up claims their boss made loudly outside the courtroom.
“My view is, you can’t have your cake and eat it too,” Judge Raymond Dearie said.
Dearie didn’t rule on the issue Tuesday, but he pressed Trump lawyer Jim Trusty about why he shouldn’t simply rule in favor of the side that at least showed him some evidence.
“If the government gives me prima facia evidence that they are classified documents, and you don’t advance any claim of declassification, I’m left with a prima facia case of classified documents, and as far as I’m concerned, that’s the end of it,” Dearie said.
Trump’s lawyers argued they can’t explain whether Trump really declassified any of the documents because that would reveal their future defense strategy if Trump ever gets charged with a crime.
The FBI is investigating whether Trump may have violated the Espionage Act by squirreling away highly sensitive national security documents at his beachside country club without the proper approvals. Unconfirmed media reports have suggested those documents may have included secrets about another country’s nuclear program.
Trump’s own former Cabinet officials have scoffed at Trump’s claim that he had a standing order to declassify all documents removed from the Oval Office to his White House residence. And national security experts have said the idea seems bizarrely far-fetched.
Dearie was hand-selected by Trump’s lawyers to referee their dispute with the Department of Justice over the documents as the so-called special master, with the DOJ’s approval.
But Dearie’s probing questions didn’t augur well for Trump’s attempts to bog down the investigation.
Trump’s lawyers may be refusing to raise the declassification argument for fear of catching legal trouble if they lie in court, said Carl Tobias, an expert on the court system at the University of Richmond School of Law.
“If Trump doesn’t want to live in reality, that’s fine, but his lawyers know they have ethical obligations,” Tobias told VICE News. “I think they don’t want to commit perjury. If they lie to the court, they could be disbarred and held in contempt of court. I don’t think they want to go there, and that’s why they aren’t saying anything or cooperating.”
Failure to state a clear position may leave Dearie with no option but to find that the documents are still classified, legal experts said.
“Trump has the burden of proof,” tweeted defense attorney and former prosecutor Renato Mariotti. “Asking the court to find that classified documents have been declassified without presenting any evidence of declassification is a non-starter.”
In other words, Trump’s early victories in this legal battle seem at risk of collapsing like sandcastles in a rising tide, now that the dispute has changed venues from Palm Beach, Florida, to Dearie’s courtroom in the Eastern District of New York.
Trump scored preliminary wins thanks to South Florida District Court Judge Aileen Cannon, who was nominated by Trump and then confirmed by the Senate to a lifetime appointment after Trump lost the 2020 election.
Cannon’s rulings were highly favorable to Trump but baffled legal observers for their curious reasoning and bizarre leaps of logic. They prompted legal observers to suggest that Cannon appeared bent on delivering Trump the results he wanted, and that at times she didn’t seem to understand the legal nuances or national security implications of her rulings.
For example: Cannon wrote that she believed the Trump team’s argument that the documents might not be classified, even though Trump’s lawyers presented no concrete evidence that this was the case. Trump’s lawyers never argued the documents were declassified but only that they might not necessarily still be classified, without further explanation. Cannon ruled that was good enough.
But that level of uncertainty didn’t appear to be enough for Dearie on Tuesday.
If Dearie finds that the documents are indeed still classified, that will presumably mean they belong to the government and shouldn’t be considered privileged, despite Trump’s protestations. That could free up the government to restart its investigation, because Cannon has ordered the DOJ to stop using the documents in its probe pending the ruling from Dearie.
It’s possible that Dearie won’t have the last word, however. He was appointed special master in the case by Cannon, which means she may still resolve disputes that Trump’s team has with Dearie about classification issues later on.
Meanwhile, another appeal is also pending in the 11th Circuit. That appellate court could either confirm Cannon’s decision to order that a special master review the files, or decide she had no right to spur such a special analysis of documents that are marked classified.