Trump Says Seized Documents Are Personal Records. Also Executive Privileged. LOL, Sure, Why Not.

It's cool. That nutjob from Judicial Watch blessed it.

How can a document be both personal property and subject to executive privilege? Dunno, ask Donald Trump and his team of sparklemagic lawyers, who are getting mighty freakin' creative in the special master review of documents seized in the August 8 raid on Mar-a-Lago.

Last night, prosecutors filed a log of the 15 disputed documents from the first batch under review, and it contains quite a few head scratchers.

"Plaintiff cannot logically assert Executive Privilege over two of the documents – 15 and 16 – because the parties agree that those documents are personal and not Presidential records," the government argues. "Only official records are subject to assertions of Executive Privilege."

The "I feel like I'm taking crazy pills" gif is implied .

Indeed Judge Dearie flagged this issue at last week's hearing, noting that it would be "incongruous" for a document to be simultaneously Donald Trump's personal property and subject to executive privilege.

According to the government's letter brief accompanying the log, Trump has characterized the disputed documents as personal when they very clearly pertain to presidential obligations. For instance, letters requesting a presidential pardon are implicitly presidential because the issuance of a pardon is part the president's constitutionally delineated powers.

Similarly, Trump claims that two of the documents which "relate to immigration initiatives and the President’s powers under the Immigration and Nationality Act and other laws governing immigration and border control" are personal, but also subject to executive privilege. (If you want to get really into the weeds, he claims that they implicate the deliberative process privilege, which applies to pre-decisional policy discussions within the executive branch. There's zero precedent that a former president can invoke it after leaving office, when his limited reach has been understood to apply only to presidential communications. But if that all sounds like Klingon to you, don't worry about it.)

Here on Planet Earth, the Presidential Records Act states very clearly that a personal record is one that was "not prepared or utilized for, or circulated or communicated in the course of, transacting Government business." Even a sitting president can't transubstantiate a presidential record into a personal one with the power of his mind or the laying on of hands. That's just not how any of this shit works.

But we can take a pretty good guess where Trump's magical thinking on this topic came from.

“Clinton kept records in his sock drawer and was DEFENDED by DOJ. Key court decision shows the raid on Trump's home is based on a SHAM! https: //t.co/7rmpPNDjJQ”

— Tom Fitton (@Tom Fitton) 1661437316 

That's right, it's Judicial Watch's Tom Fitton who sued the National Archives in 2011 demanding that it designate the tapes of Bill Clinton, which author Taylor Branch made while researching his biography of the former president, as presidential records, and then go seize them. Judge Amy Berman Jackson dismissed the case, because OMG SHUT UP that's not how the PRA or FOIA work you weirdo. From which Fitton, who is not a lawyer, inferred that Trump has the power to magically declare any record personal and take it home with him.

“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 yells in that Twitter video which I watched when CNN reported that Trump was taking legal advice from this idiot. “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.”

Or as prosecutors put it, with an almost audible sigh at having to wade through this shit:

The single district court case on which Plaintiff relies, Judicial Watch v. NARA, 845 F. Supp. 2d 288 (D.D.C. 2012), does not prove that any of the nine documents were “[r]ecord[s] designated [as] personal consistent with the Presidential Records Act,” as Plaintiff asserts in his log entries. The district court in Judicial Watch held that a third party cannot bring a claim to compel NARA to revisit a President’s categorization of records. See 845 F. Supp. 2d at 302. Although the court stated that the responsibility to categorize records as Presidential or personal “is left solely to the President” during his term of office (id. at 301), neither the district court in Judicial Watch nor any other court has suggested that otherwise Presidential records may be rendered personal by fiat. Nor has any court held that NARA would be without authority or recourse if a President were to designate records that are plainly official government documents as personal records.

Meanwhile, Trump's lawyers responded that they assumed there would be a joint privilege log, and so they're not turning in their homework until Monday, because they need extra time to respond to supposed inaccuracies in the DOJ's filing.

To which Judge Raymond Dearie, the special master, responded NOPE:

The Special Master notes Plaintiff's counsel's letter of October 20, 2022 151 . To the extent Plaintiff asserts that the government's letter of the same date 150 "is not fully accurate as to the Plaintiff's position on various documents," any submission by Plaintiff to the contrary is now untimely pursuant to my Order of October 7, 2022 138, which required the parties to submit their final log of positions regarding certain Filter Materials by October 20, 2022. Plaintiff may submit his position no later than the close of business today, October 21, 2022.

Trump and his lawyers can turn their homework in on time without copying prosecutors' paper, thankyouverymuch . So unless Judge Aileen Cannon comes bigfooting back on a Friday afternoon to bail these goobers out, within the next couple of hours we'll be getting an acid trip of a filing explaining how Trump transformed policy memos into personal records through astral projection, but the government still can't see them because they're, umm, secret government records.

Drink up, kids!

[ Trump v. US , Docket via Court Listener]

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