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Special master prods Trump lawyers: ‘You can’t have your cake and eat it’

Donald Trump’s attorneys joust with Judge Raymond Dearie on classification question, access to Mar-a-Lago documents

Judge Raymond J. Dearie, depicted in a courtroom in New York on Tuesday, presides over his first public hearing since his appointment as special master to review documents seized last month by the FBI from Donald Trump’s Florida home. (Jane Rosenberg/Reuters)
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NEW YORK — A special master pressed Donald Trump’s attorneys to move quickly and provide more answers about whether the former president did or didn’t declassify documents marked “top secret” that were found in his Florida home last month, saying “you can’t have your cake and eat it” if they want to argue the documents might not still be secret.

At his first meeting with lawyers for Trump and the Justice Department in his new role as special master, U.S. District Judge Raymond J. Dearie urged the Trump side to spell out its position on the question of roughly 100 documents marked classified that were taken by FBI agents as part of a court-authorized search of Mar-a-Lago on Aug. 8.

“We have little time to complete the tasks assigned to the court,” Dearie told the lawyers Tuesday, prodding them to quickly resolve legal questions about the high-profile national security investigation into a former president who frequently indicates he may again seek the White House. “We are going to proceed with what I call responsible dispatch.”

The Post's Perry Stein explains how a special master will identify if any documents seized by the FBI are protected by attorney-client or executive privilege. (Video: The Washington Post)

Dearie issued no rulings at the hearing. But he made clear that if Trump’s side remained silent on whether their client had at some point in his presidency declassified the documents, Dearie was likely to agree with prosecutors that the documents at the heart of the case are still classified. Trump’s legal team has argued that answering the question now could put them at a disadvantage in the face of a possible future criminal prosecution, or a future legal fight over getting seized documents returned to Trump.

When Trump defense attorney James M. Trusty told Dearie that he should not be forced to disclose declarations and witness statements yet, the judge replied: “My view is you can’t have your cake and eat it” — signaling that he may not have much patience for that argument as the special master review proceeds.

Trump team falsely claimed boxes at Mar-a-Lago contained only news clippings

Dearie was appointed by U.S. District Judge Aileen M. Cannon to serve as a neutral third-party legal expert to examine which of the roughly 11,000 documents and other items seized from Trump’s residence and private club may be covered by claims of attorney-client privilege — or the far more vague and disputed assertion of executive privilege. Because Dearie is still an active judge in federal court in Brooklyn, the hearing took place in his courtroom even though Cannon sits in Florida, near Mar-a-Lago.

Trump’s legal team has repeatedly suggested in court filings that the former president could have declassified the documents — but they have not actually asserted that he did so. In her rulings on appointing a special master to review the documents, Cannon never pressed the issue, though she pointedly cast doubt on the government’s claims the documents were restricted.

Prosecutor Julie Edelstein reasserted on Tuesday that the Justice Department believes only the “current executive branch” has the power to decide what is classified and what is not.

Justice Department lawyers also clashed with Trusty at the hearing over whether Trump’s legal advisers should have quick access to the classified documents. Trusty argued that such access is necessary information to defend his client, saying it was “astounding” for prosecutors to suggest the president’s lawyers don’t need to see those materials. Trusty said throughout the hearing that he hadn’t reviewed the seized documents and couldn’t make specific claims about them.

“I believe we have a need to know,” he said.

Dearie did not make any determinations from the bench about who should get access, but said “let’s not belittle the fact that we are dealing with at least potentially legitimately classified information.”

“If I can make recommendations to Judge Cannon, right or wrong, without exposing myself or you to that material, I’m going to do it,” Dearie said to Trusty.

It was an inauspicious start for Trump’s engagement with a special master, which the former president had requested after the FBI’s search, and for Trump’s lawyers, who seemed to find a less receptive audience with Dearie than they have with Cannon.

Trump lawyers acknowledge Mar-a-Lago case may lead to indictment

The Justice Department lawyers have asked an appeals court in Atlanta to override Cannon’s decision that the classified documents — some of which are such closely held secrets that even parts of the investigative team were not initially allowed to read them — should be reviewed by Dearie along with the unclassified documents. Cannon also barred the Justice Department from using the seized documents in their criminal probe until they are reviewed.

Trump’s lawyers filed court papers Tuesday arguing against the department’s appeal, saying again that the government “has not yet proven” that the documents in the case are classified.

Separately, Republican attorneys general in 11 states, including Florida, Mississippi, Texas and Utah, filed court papers supporting Trump’s position — an unusual move in a criminal investigation involving questions of classified documents and national security. The states noted they had been “frequent litigants against the Biden Administration,” and decried what they described as the “ransacking” of the home of President Biden’s “one-time — and possibly future — political rival.”

At Dearie’s hearing Tuesday, prosecutors signaled that if they failed at the appeals court level, they would consider appealing again to the Supreme Court. Because of that, the government said it did not believe it could hand over the classified documents for the special master review process as quickly as Dearie had proposed in a draft timeline he has shared with both parties.

Prosecutors say the search of Trump’s home, club and office was necessary to recover highly sensitive national security papers, following months of prevaricating by Trump’s legal team about what classified documents he had in his possession after leaving the White House and whether he had given them all back to the government.

Officials say they are investigating several potential crimes, including mishandling of national defense information and hiding or destroying government records.

Trump’s lawyers have accused the Justice Department of trying to turn a records-keeping dispute with the National Archives and Records Administration into a criminal case.

The Washington Post has reported that among the classified material the FBI retrieved from Mar-a-Lago was a document describing a foreign government’s military defenses, including its nuclear capabilities, according to people familiar with the search, who spoke on the condition of anonymity to describe sensitive details of an ongoing investigation.

Some of the seized documents detail top-secret U.S. operations so closely guarded that only the president, some members of his Cabinet or a near-Cabinet-level official could authorize other government officials to know details about them, these people said.

Records that deal with such programs are kept under lock and key, almost always in a secure compartmented information facility, with a designated control officer to keep careful tabs on their location.

The Justice Department had suggested to Dearie in a previous court filing that he should consult with the archives as he conducts the review. Trump’s lawyers slammed that suggestion at Tuesday’s hearing, calling the government agency a “political” and “partisan” organization.

Dearie said he thought the defense attorneys were painting the record-keeping agency — widely known for being featured in the 2004 movie “National Treasure” — with a “broad brush.” He noted that he did not currently see a need to consult with the archives, but would let the lawyers know if he did contact the agency.

Edelstein, a Justice Department attorney, responded that the archives could provide expertise as to what should be considered government documents, saying that the seized documents would have been in the agency’s possession if Trump hadn’t stored them at Mar-a-Lago.

Dearie told the lawyers that he would host “progress conferences” to track the review process, but did not say when the first one would occur. He asked Trump’s team to select by Friday one of the Justice Department’s suggested outside vendors, which would provide secure software for the government to upload the seized documents so Trump’s team can review them. After that, the Justice Department could dispute any privilege claims made by Trump’s lawyers. Then the special master would settle any disagreements between the two sides.

The Justice Department said it could prepare the nonclassified documents for review by early next week.

Barrett reported from Washington.