The Department of Justice told a federal appeals court that Donald Trump's attorneys didn't show that the former president declassified government records that were taken from his Florida home.
The Justice Department made that argument late Tuesday as it sought to resume its review of records marked classified that were seized from Mar-a-Lago.
Trump's lawyers asked the court to preserve a ruling from a lower federal judge that prevented the government from examining the seized documents.
Federal prosecutors said that Trump implied that he could have declassified the records before he left office.
"As before, he conspicuously fails to represent, much less show, that he actually took that step," they wrote.
Trump is resisting a request by a court-appointed special master for him to provide evidence that he declassified records.
The prosecutors argued that the attempt to raise questions about classification status was a red herring. There is no justification for the government to restrict the use of evidence at the center of an ongoing criminal investigation even if the records were declassified.
The special master, an independent third party who would review the thousands of records to identify personal items and information that could be protected by various legal privileges, was authorized by the district judge to be appointed. Cannon temporarily stopped the DOJ from using seized material in its criminal investigation.
The part of Cannon's order barring the use of government records with classification markings was appealed by the DOJ.
The lawyers for Trump and the DOJ were in Brooklyn for a conference with the special master. He was appointed by Cannon who had been nominated by Trump.
In Tuesday's court conference, Dearie expressed skepticism about which of the seized Mar-a-Lago records had been declassified.
According to Dearie, the documents with classified markings are in fact classified. "As far as I'm concerned, that's the end of it," Dearie said.
On August 8, the FBI raided Mar-a-Lago, looking for evidence of obstruction of justice and the removal of official records.
More than 100 documents with classified markings were seized in that raid. Four dozen empty folders were found during the raid. Dearie said there are 11,000 documents at issue.
The government records that were retrieved from Mar-a-Lago were declassified by Trump, according to his allies. Lawyers for the ex-president did not repeat that claim in court.
They told the appeals court that the DOJ has not proved that the documents are classified, and that a president has the authority to declassify any information.
The fact that the documents contain classification markings doesn't mean they don't have privilege claims to contend with. According to the probable cause affidavit used to obtain the Mar-a-Lago search warrant, some documents have classified markings on them.
Lawyers for Trump wrote that the notes could contain privileged information.
In the appearance before the special master in Brooklyn federal court on Tuesday afternoon, Trump attorney James Trusty said, "We should not be in a position to have to disclose."
Deariee said she didn't think you could have your cake and eat it.
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