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Donald Trump appeared to acknowledge in his court filing regarding the seizure of materials from his Florida resort that he unlawfully held onto official government documents, as the former president argued that some of the documents collected by the FBI could be subject to executive privilege, which entails that the president has the power to withhold certain forms of confidential communication from the courts and the legislative branch.

The motion submitted on Monday by the former president’s lawyers claimed that a court should appoint a "special master" to separate out and determine what materials the justice department can review as evidence due to privilege issues.

Trump's argument that some of the documents are subject to executive privilege protections indicates that those documents are official records that he is not authorized to maintain and should have turned over to the National Archives at the end of the administration.

Privileged but not for prosecution of crime

The motion, in that regard, appeared to affirm that Trump violated one of the criminal statutes listed on the warrant - 18 USC 2071 - used by the FBI to search the former president’s Mar-a-Lago resort concerning the illegal removal of government records, which was personally approved by Attorney General Merrick Garland. 

The search warrant for Mar-a-Lago was executed last Monday as part of an ongoing Justice Department investigation into the finding of secret White House papers taken from Trump's property earlier this year. The National Archives had requested an investigation after claiming that 15 cartons of paperwork taken from the estate contained secret information.

Asha Rangappa, a former FBI agent and former associate dean at Yale Law School commented: “If he’s acknowledging that he’s in possession of documents that would have any colorable claim of executive privilege, those are by definition presidential records and belong at the National Archives... and so it’s not clear that executive privilege would even be relevant to the particular crime he’s being investigated for and yet in this filing, he basically admits that he is in possession of them, which is what the government is trying to establish". 

Trump remains able to make the case that a special master should be appointed to go over the seized documents, seek a more detailed receipt for what the FBI retrieved from Mar-a-Lago and restrain the justice department from further reviewing the materials until the process is complete, which Trump claimed current US President Joe Biden already knew of beforehand. 

Former US attorneys argue the justification is that there could be communications seized by the FBI that are privileged but not used in the prosecution of a crime. Even if the justice department wanted to use them in its investigation, it should be omitted from doing so.

A person directly involved in Trump’s legal defense noted, repeating parts in the filing, that the Presidential Records Act had no enforcement mechanism, even as they agreed that the justice department might pursue the privilege argument as a tacit admission.

But Trump’s motion could arise additional challenges for the former president, with additional passages in the filing laying out a months-long battle by the justice department to recover certain records in a pattern of interactions that could be construed as obstruction of justice. The search warrant for Mar-a-Lago listed obstruction for the statutes potentially violated, though it was not clear whether that was obstruction of the investigation into the very retrieval of government documents from Mar-a-Lago or for another separate investigation. Trump is facing a criminal investigation over potential violations of the Espionage Act and additional statutes relating to obstruction of justice, as well as the destruction of federal government records. 

Yet the section in Trump’s motion titled “President Donald J Trump’s Voluntary Assistance” detailed the multiple steps the justice department took to initially retrieve 15 boxes in January, additional materials in June, and then 26 boxes when the FBI conducted its search.

Subpoena accepted for classified docs 

The filing discussed how Trump returned the 15 boxes to the National Archives, and one day after the National Archives told Trump’s lawyers that those boxes contained classified documents, he “accepted service of a grand jury subpoena” for additional documents marked as "classified".

Despite taking custody of documents responsive to the subpoena, the justice department learned there may have been additional documents marked as classified, and issued a subpoena on 22 June demanding security camera footage of the hallway outside where the materials were being stored.

That subpoena for security tapes, as well as a subsequent subpoena for CCTV footage of that area from just before the FBI search on August 8, suggests the justice department did not think Trump was being entirely truthful or straightforward in his interactions with the investigation.

Those suspicions were well-founded: when the government retrieved materials from Mar-a-Lago on that second collection in June, Trump’s custodian of records attested they had given back documents responsive to the subpoena – only for the FBI to retrieve more boxes of classified materials.

Separately, apart from the late filing of the motion two weeks after the FBI search took place, the brief itself appears to be procedurally problematic.

The motion was not filed in West Palm Beach, Florida, where the warrant was approved. Instead, it was filed in Fort Pierce, where the judge has no knowledge of the underlying affidavit – and could rule in such a way to reveal to Trump if he or his lawyers are suspects for obstruction.

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