Dwight wrote: ↑Tue Sep 20, 2022 8:56 pm
Oh dear, Dearie was not having it from team Trump. He said since the documents are marked classified that’s basically it, unless Trump, or his lawyers, want to explain what has been declassified. His lawyers declined again since they don’t want to reveal their top secret defense yet. Before Trump’s team had filed that they were cool with things taking as long as they needed to, but it looks like Dearie is going to speed things along.
From what I’ve read, Dearie did a nice job. He’s got decades of experience, knows how long a privilege review should take, and put the parties on notice that he’s going to move things along.
The issue of whether the documents marked classified are actually classified is, I think, gumming up the works. The judge didn’t direct the SM to examine that issue, and Trump’s lawyers are just tap dancing in the hopes that they can get a look at the documents marked classified before committing to a position. I’m guessing that, once they see the documents, they hope Trump will be able to concoct a story about declassification that isn’t inconsistent with the documents he took.
The SM seems to be thinking that, if Trump isn’t willing to claim he declassified documents at this stage, he doesn’t have to look at the documents marked classified. He may not with respect to whether Trump is entitled to retain the documents: Trump has yet to offer how any documents that was classified at any time could be considered a “personal record” under the PRA. But he may still need to review them for privilege — especially executive privilege.
Trump’s lawyers finally discovered their best argument on executive privilege and the documents marked classified. The most detailed version of the inventory says that at least a couple of the documents marked classified include “notes.” Notes written on or fastened to a classified document could be covered by executive privilege. Trump’s lawyers referred to this in the opposition to the government’s motion to stay filled with the 11th Cir, although they buried it in a footnote. Because, of course they did.
Even then, the SM may only be required to review any notes, as opposed to documents prepared by others. But, if he sticks to the position he appeared to take at the hearing, we may see a motion for clarification from Trump in the next few days.