The special master set to examine the 11,000 documents that were retrieved from former President Donald Trump’s Mar-a-Lago estate last month — including over 100 documents that were marked as classified — has voiced skepticism over Trump’s assertion that he declassified the documents before leaving office, citing his lawyers’ refusal to specify whether or not the claims were true.
Trump has publicly claimed he declassified all the documents that were marked as classified, but his lawyers have not made that same argument in their request for a special master or in any other legal filings. They have insinuated, however, that it’s a possibility he did so, and have argued that the court shouldn’t automatically assume that the Department of Justice’s (DOJ) claims that the documents are still classified are true.
On Tuesday, during Judge Raymond Dearie’s first hearing since being appointed the special master, the veteran judge said that the DOJ’s argument is stronger than Trump’s, since their claim (that documents with classified markings are indeed classified) makes more sense in the absence of contradictory evidence.
“Let’s not belittle the fact that we are dealing with at least potentially legitimately classified information,” Dearie, who was one of Trump’s suggestions to be special master, said during the 40-minute hearing. “The government has a very strong obligation, as do all of us, to see to it that that information doesn’t get in the wrong hands.”
In discussing the DOJ’s “prima facie evidence” — terminology that means “sufficient to establish a fact or raise a presumption unless disproved or rebutted” — Dearie said that the former president’s lawyers didn’t make a cogent legal argument that the material that was retrieved last month might not be classified.
“As far as I’m concerned, that’s the end of it,” Dearie said, noting that he would only make an exception if Trump’s legal team could provide evidence of declassification.
Many legal experts praised Dearie for refusing to accept the flimsy legal argument.
“It really was ‘put up or shut up'” from the special master, said former DOJ prosecutor Andrew Weissmann on MSNBC on Tuesday.
“Dearie seems poised to just say the 100 docs” marked as classified “are classified, maybe [without] even looking at them, since they’re so marked and Trump team gave zero evidence,” said Harry Litman, a legal columnist for The Los Angeles Times and former U.S. Attorney.
“Dearie should simply decide that he is going to accept the government’s assessment that docs that are marked classified are classified; if Trump wants to wait until he is charged to litigate declassification it’s unclear what the point is in reviewing them further now,” Asha Rangappa, a former FBI special agent and current editor at Just Security, tweeted in response to Dearie’s comments during the hearing.
The bickering from Trump’s lawyers over the classification status of the documents began before the hearing on Tuesday. Prior to Monday, Dearie had provided both Trump’s lawyers and the DOJ with his “draft management plan” outlining how he intended to proceed as special master. In a legal filing on Monday, Trump’s lawyers complained about the request for proof of declassification in that plan, saying that providing that information would deprive Trump of a defense strategy should he be indicted.
“[T]he Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order,” Trump’s lawyers said in their legal briefing.
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