On Monday evening, lawyers for former President Donald J. Trump insisted that he should not have to formally declare in court whether, as he has claimed publicly, he had used his power before leaving office to declassify sensitive documents seized from his Florida home last month.
But on Tuesday, in a separate court filing, Mr. Trump’s lawyers argued that the Justice Department has not proved that those same documents, some of which carry markings indicating the highest level of government secrecy, continue to be classified, coyly hinting Mr. Trump might have declassified them.
Mr. Trump, in other words, wants it both ways: He is arguing that he and his legal team should not have to state in a legal proceeding, where they could become subject to perjury charges or other penalties, that he declassified the documents, while also telling the courts that they should not accept the Justice Department’s word that they remain classified.
“The government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable,” his legal team wrote in a filing Tuesday to the federal Appeals Court for the 11th Circuit in Atlanta. “However, the government has not yet proven this critical fact. The president has broad authority governing classification of, and access to, classified documents.”
The latest attempt to skirt the question of declassification came as Mr. Trump’s lawyers and lawyers for the Justice Department appeared for the first time in front of a special master appointed to sift through the seized documents. Questions about the classification status of those records came up at the hearing where the judge, Raymond J. Dearie of Federal District Court in Brooklyn, was expected to set a schedule and the general rules for conducting his review.
More on the Trump Documents Inquiry
- Special Master: A federal judge granted former President Donald J. Trump’s request for an independent arbiter, known as a special master, to review the documents that the F.B.I. had seized from Mar-a-Lago, appointing Judge Raymond J. Dearie of the Federal District Court in Brooklyn.
- Access to Sensitive Records: The same federal judge enacted, and later refused to lift, a temporary ban on the Justice Department’s ability to access classified documents seized from Mr. Trump’s home. On Sept. 16, the agency asked an appeals court to let the F.B.I. regain access to the documents.
- A Previous Warning: A onetime White House lawyer under Mr. Trump warned the former president late last year that he could face legal liability if he did not return government materials he had taken with him when he left office.
No credible evidence has emerged to support Mr. Trump’s claim that he had a standing order to declassify everything he took from the Oval Office, but his supporters have clung to the assertion as one that could exonerate him.
However, the three crimes listed as the basis for the warrant used to conduct a search of Mr. Trump’s Mar-a-Lago estate in Palm Beach, Fla., do not require prosecutors to prove that the documents the F.B.I. found there were in fact classified.
Mr. Trump’s defense in the criminal investigation into his handling of sensitive government documents has often seemed as much about public relations as about legal substance.
The filing on Tuesday was in response to the Justice Department’s request that it regain access to about 100 records marked as classified. The department also wants to keep those documents apart from the special master’s review for determining whether a larger trove of more than 11,000 seized files should be withheld from investigators under attorney-client or executive privilege.
In granting Mr. Trump’s request for a special master, Judge Aileen M. Cannon of Federal District Court for the Southern District of Florida, a Trump appointee, upended the investigation by giving that arbiter broad authority to review the documents. After she refused to stay the portion of her order that would restore the Justice Department’s access to the files with classification markings in its investigation, prosecutors asked the 11th Circuit to intervene.
In June, the department issued a subpoena to Mr. Trump for all remaining government files marked as classified. Two of his lawyers said that none remained, but investigators determined there was evidence that those claims were false, leading to the search last month. Notably, because the subpoena demanded the return of all files with classification markings — not all files with classification status — that renders Mr. Trump’s claim that he had declassified the files irrelevant in determining whether he or his aides committed the crime of defying a subpoena.
In appointing Judge Dearie, Judge Cannon has set a Nov. 30 deadline for any outstanding disputes from his review.
Still, she has directed Judge Dearie to begin examining documents marked as classified, suggesting she might resolve that portion early. But because she has asked the Trump legal team for an initial proposal of how certain files should be categorized, at least one of his lawyers will need a very high security clearance.
Before meeting with both parties on Tuesday, Judge Dearie had circulated a draft plan for them to comment upon.
While that draft plan was not made public, the Trump legal team’s response on Monday night disclosed some of its details.
In addition to rejecting the judge’s apparent proposal that they submit a sworn affidavit or declaration about any declassification actions related to the documents, the Trump lawyers also objected to having each side inspect the files and submit their proposed labels — as government or personal, and privileged or unprivileged — by Oct. 7.
“We respectfully suggest that all of the deadlines can be extended to allow for a more realistic and complete assessment of the areas of disagreement,” they wrote.