Trump claims he owns White House pardon and immigration policy records

WASHINGTON — Former President Donald Trump is claiming that nine documents seized by the FBI from his Florida residence are his personal property — but the Justice Department says they are official records that should be deposited with the National Archives, according to a new letter to the special master who is overseeing a review of the materials.

The letter, filed Thursday by the Justice Department, describes disputes over ownership and executive privilege claims involving a batch of 15 records that have undergone early review. It likely foreshadows larger fights to come over the main bulk of roughly 13,000 documents and other materials FBI agents took from Mar-a-Lago, Trump's club and residence, in a court-authorized search in August.

The materials from the initial tranche that Trump maintains belong to him include six packages submitted to him when he was president supporting requests that he grant clemency to pardon-seekers; two documents related to his administration's immigration policies; and an email addressed to him from a person at a military academy, the letter said.

But the Justice Department, in its letter, scoffed at the notion that any of those materials belong to Trump. It cited the Presidential Records Act, which says all documentary materials created or received by a president, his staff or his office in the course of official activities are government property that should go to the National Archives when a president leaves office.

Of the pardon packages, for example, the Justice Department wrote: "Those requests were received by plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity."

The dispute stems from a decision by Judge Aileen Cannon in Florida's Southern District to grant Trump's request that she intervene in the Justice Department's inquiry into whether he had unlawfully kept classified records at his estate and obstructed the government's repeated efforts to retrieve them.

Surprising legal experts, Cannon, a Trump appointee, imposed an injunction temporarily blocking criminal investigators from using any of the documents. She also appointed the special master, Judge Raymond Dearie of the U.S. District Court in Brooklyn, to review any claims that they were Trump's personal property or protected by attorney-client or executive privilege.

The letter, addressed to Dearie, described the documents in broad strokes because the list is technically still sealed. However, because the list was mistakenly filed on the public docket before being taken down and copies were posted online, it is possible to see with greater detail what files are in dispute.

The letter said that Trump is also claiming that four of the 15 documents should be withheld from investigators under executive privilege. They include the two immigration policy documents, which Trump's team said were predecisional materials, and two documents about meetings he was to approve and certain questions he had been asked.

The Justice Department argued that Trump "cannot logically assert" executive privilege over the two immigration policy documents at the same time he claims they are personal property, saying "only official records are subject to assertions of executive privilege."

That dispute appeared to shed light on a comment that Dearie made in a telephone conference with the parties earlier this week. Complaining that the Trump legal team had not offered much substance to explain its claims, he noted a document that the lawyers had claimed was both personal property and protected by executive privilege.

"Unless I'm wrong, and I've been wrong before, there's certainly an incongruity there," Dearie said at the time.

The Justice Department, which has appealed Cannon's order, argues that a former president cannot use executive privilege to keep executive branch materials from executive branch criminal investigators.

In its letter, the department said that Trump's team has relied on a 2012 ruling in claiming that their client owns the materials. In that case, a district court judge rejected a lawsuit by a conservative group that wanted to force the National Archives to challenge an earlier decision by former President Bill Clinton to designate as his personal property a set of interview tapes.

Trump's legal team has cited that case in public filings as well, arguing that the ruling means presidents have "extraordinary discretion" to designate materials in the White House as their property. In the public filings, the lawyers have not argued that he deemed any of the documents as his property before leaving office, however.

The Justice Department noted that Trump had offered "no evidence that he in fact designated" the disputed documents as personal records while in office. And, it wrote, neither the 2012 ruling nor any other by a court "has suggested that otherwise presidential records may be rendered personal by fiat."