“You can’t have your cake and eat it too,” Judge Raymond Dearie told the former president’s lawyers on Tuesday
Donald Trump fought tooth and nail for the appointment of a “special master” to review the documents the FBI seized from Mar-a-Lago early last month. The first hearing before Judge Raymond Dearie on Tuesday indicated the former president and his legal team may have overplayed their hand.
Dearie said during the hearing that it is incumbent upon Trump’s lawyers to make a case that the documents seized were declassified. Trump has repeatedly insisted they are, but his team has refrained from doing so — possibly because it isn’t true. Dearie, who was recommended for the position by Trump’s team, told the former president’s lawyers that if they don’t provide compelling evidence that the documents are declassified, he will side with the Justice Department and treat the material as classified.
“If the government gives me prima facia evidence that they are classified documents, and you don’t advance any claim of declassification, I’m left with a prima facia case of classified documents,” Dearie said, “and as far as I’m concerned, that’s the end of it.”
In a pre-hearing filing on Monday, Trump’s lawyers indicated they should not have to disclose details about what was or wasn’t declassified, as it could affect Trump’s defense against potential criminal charges. They argued before Dearie on Tuesday that they should not be required to reveal what line of defense they would use before the issue of the documents classification is arbitrated before a separate judge.
“You can’t have your cake and eat it too,” Dearie countered, adding that he is unable to determine the documents’ classification status himself. “What business is it of the court?” he asked.
Dearie was appointed special master by Judge Aileen Cannon based on a recommendation from Trump’s legal team. Dearie has been tasked with reviewing the trove of documents seized from Mar-A-Lago and establishing any potential issues of attorney-client or presidential privilege in the material.
The DOJ has identified hundreds of classified documents that were kept at the former president’s Palm Beach residence following his departure from the White House, including dozens with top-secret classification markings. Despite the DOJ having already conducted a review of the documents, Trump fought to have a special master appointed. The former president has repeatedly made dubious claims as to having had a “standing order” to declassify any documents he took to Mar-a-Lago, but even if that order exists, neither he nor his lawyers have provided any evidence to indicate this actually happened.