Trump Says He Magically Transformed Government Docs Into Personal Records By Stealing Them. So, We're Cool?

Well, you can try it ...

The net effect of Donald Trump's little love dance with US District Judge Aileen Cannon will probably be negligible — he'll have succeeded in delaying the investigation into stolen government documents stashed in his pool locker by a few months, but the end result will likely be the same. Eventually, the government is either going to charge him, or it's not. But along the way, he's going to pay a team of lawyers several million dollars to make some blatantly horseshit arguments, as yesterday when he dropped this doozy :

And as demonstrated by the Judicial Watch decision, President Trump need not put forth documentary evidence of his designation decisions, because his conduct unequivocally confirmed that he was treating the materials in question as personal records, rather than Presidential records.

Let's call this one "document classification by theft," because that is literally what this crazy sumbitch and his lawyers are arguing. And they're putting this fakakta theory in a legal filing because that weirdo Tom Fitton from Judicial Watch, who is not a lawyer , told Donald Trump it would work . Which is a really freakin' dumb reason to do anything!

To review! On his way out of the White House, Donald Trump scooped up a bunch of stuff that didn't belong to him and stashed it at his private club in Florida. After negotiating for more than a year to get that shit back — first politely, then through a subpoena — the FBI executed a judicially authorized warrant at Mar-a-Lago on August 8, seizing hundreds of documents, including some which were highly classified. Two weeks later, Trump sued the government, demanding the return of "his" property and the appointment of a special master to sort through it. And even though that is not how any of this works if you're a normal suspect in a criminal case, Trump lucked into the one courtroom in Florida where he wouldn't get summarily booted making such preposterous demands.

Trump's premise from the jump has been that this is a document dispute under the Presidential Records Act which got out of hand due to the Biden Justice Department's "unjustified pursuit of criminalizing a former President’s possession of personal and Presidential records in a secure setting." The PRA has no enforcement mechanism, they shout, conveniently disregarding the fact that the warrant made no reference to that statute, but instead convinced a magistrate judge that there was probable cause to believe that Trump violated the Espionage Act, obstructed justice, and improperly handled government documents. Also, presidential records are by definition the property of the United States government, and don't belong in a closet next to the pool at a private country club, so congratulations, asshole, you just confessed to crimes .

But Tom Fitton has an answer for that one, and it is that the president has the sole and unreviewable authority to designate records as personal or presidential, so Trump was within his rights to take any document, even classified stuff, shout "PERSONAL," and make off with it.

“No one but the president gets to pick what’s presidential records, no one but the president gets to pick what are personal records,” he screeched on Twitter back in August. “And the Archivist, which is being used as a cutout for the anti-Trumpers running our government here in DC, has no authority to second-guess him.”

This theory is based on a 2009 case in which Judicial Watch filed a FOIA request for tapes of Bill Clinton made for the author Taylor Branch. The Archives said it didn't have them, at which point Judicial Watch sued to force the agency to designate the tapes as presidential records and go get them. US District Judge Amy Berman Jackson ruled that the court had no authority to order the Archives to designate a record as presidential, and even if it did, the Archives couldn't just seize the tapes. From this, Fitton adduces that Trump can't be forced to give back shit he stole — which probably makes sense if you're a MAGA-huffing dipshit being suffocated by your spandex polo shirt. And even though Trumpworld groaned to CNN that Fitton was making everything so much worse, Trump's "competent" lawyer Chris Kise is now putting his name on court papers citing the Judicial Watch case in support of the theory that everything Trump took is "personal" property. In fact, he's going one further, arguing that Trump didn't have to make a formal designation of any document as personal — the very act of purloining it is an official designation as a personal record.  

"[I]t is the President’s designation—not the appearance or content of a given document—that is determinative," Trump's lawyers write . "And as demonstrated by the Judicial Watch decision, President Trump need not put forth documentary evidence of his designation decisions, because his conduct unequivocally confirmed that he was treating the materials in question as personal records, rather than Presidential records."

The problem for them, though, is that this argument is bullshit. Judge Jackson acknowledged in her ruling that courts do have a limited oversight role of presidential records designations, and anyway the PRA specified that records created in the executive branch “shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately," i.e. not by sweeping them into a suitcase years later and stealing them. Also, there's the minor matter that, having declared a document personal, you can't then turn around and argue that it's a presidential record subject to executive privilege. Or, you couldn't if you weren't an absolute bloody hack. Fortunately, that's not a problem here !

Note that the top item in yellow is designated by Trump as both a personal record and subject to executive privilege. And the green items are things Trump claims to have transubstantiated by theft under the Judicial Watch precedent, rendering them personal records. But if the court doesn't buy that one, he'd like to argue in the alternative that they are covered by executive privilege and cannot be shared with the Justice Department, even though the DOJ is part of the executive branch.

Prosecutors respond that “The Special Master should not indulge this type of gamesmanship." In fact, here's their reply brief last night, attempting to convince special master Judge Raymond Dearie not to let Trump get away with this idiotic Judicial Watch argument.

"Neither the PRA nor the single district court decision on which Plaintiff’s argument rests gives him the sweeping authority he claims to convert governmental records into 'personal' property simply by the act of removing them from the White House," they splutter.

We've already been here before when Congress passed the predecessor to the PRA to prevent Richard Nixon from thwarting an investigation of Watergate by taking all his presidential papers with him.

Plaintiff asserts that a law enacted by Congress in the wake of Watergate to preserve the public’s access to Presidential records actually allows a President to (1) pack up and remove boxes full of Presidential records at the end of his term in office; and (2) convert those Presidential records into “personal” records through that simple act of removal. To state Plaintiff’s position is to refute it  

Not for nothing, but Nixon challenged that law, and he lost .

Anyway, TL, DR: Trump's lawyers are making batshit arguments that would get laughed out of any other courtroom and are unlikely to pass muster with Judge Dearie. But Judge Cannon has the last word, and she's shown herself more than willing to accept any insane nonsense from Team Trump. Meanwhile, the Justice Department has appealed the special master appointment to the Eleventh Circuit, which already gave major side eye to Judge Cannon's justification for intervening in this case at all. So it's entirely possible that the appellate court vaporizes this whole exercise in a cloud of disgust as an abuse of discretion.

But until then, we're stuck slogging through this dumb shit together.

[ Trump v. US , Docket via Court Listener]

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