NEW YORK – Attorneys for former President Donald Trump and the Department of Justice clashed in a Brooklyn courtroom Tuesday before a special master over access to records seized from Trump’s Mar-a-Lago estate and the process of deciding whether some of the records are classified.
James Trusty, one of Trump’s lawyers, argued that the Presidential Records Act gives Trump broad latitude over records of his White House administration and “does supersede” security concerns raised by the government. Trusty said the legal team needs to review all of the seized records before making more detailed arguments.
However, Julie Edelstein, deputy chief of the Justice Department’s counterintelligence section, argued that the classification status of the records “is an executive branch determination” by the current White House administration.
She also said the government likely would pursue other appeal options if a federal appeals court does not lift a stay that has blocked investigators from reviewing roughly 100 documents with classified markings seized in the search.
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The special master, U.S. District Judge Raymond Dearie, warned Trump’s lawyers they ultimately would have to supply evidence backing the former president’s claims that he had declassified the records in question. They include roughly 100 of the seized records that were marked classified or top secret.
“You can’t have your cake and eat it,” said Dearie.
Trusty acknowledge that Trump’s legal team would need to provide evidence. And he asked Dearie to help the former president’s lawyers speed the process of getting security clearances needed to examine the records marked classified.
During a nearly 45-minute hearing, Dearie gave Trump’s team a Friday deadline to agree on a government-approved vendor that will scan all of the seized records and enable attorneys from both sides to begin shaping arguments about whether some documents are governed by an executive or attorney-client privilege.
Dearie planned to issue a case management plan later on Tuesday.
The courtroom clashes came nearly a day after Dearie asked for “specific information regarding declassification,” Trusty disclosed in a court filing on Monday night.
However, Trump’s attorneys don’t want to tip their hand on the issue just yet. The time for court filings about declassification would come with court arguments for returning the seized records to Trump, wrote Trusty.
“Otherwise, the special master process will have forced” Trump’s legal team to disclose defense arguments before any criminal indictments that might be obtained by the Department of Justice, argued Trusty. 
The exchange spotlighted an unanswered question. Some Trump advisers previously suggested the former president had declassified the documents that bore top secret and classified markings and were found by FBI agents during an Aug. 8 search of Trump’s Mar-a-Lago mansion in Florida.
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However, Trump’s lawyers have not argued or addressed the issue in their filings to Florida U.S. District Court Judge Aileen Cannon. She’s the Trump-nominated judge who’s presiding over the main case over the FBI document seizures. Cannon appointed Dearie as special master last week to referee a legal review of the documents for that case.
Dearie set Tuesday’s first court conference with attorneys for both sides in Brooklyn federal court, where he has served for decades as a jurist, and before that, as a federal prosecutor.
The lawyers said in Monday night filings that Dearie had distributed a draft case management plan for review. The filing from Trump’s legal team said that plan envisioned a Nov. 30 completion deadline.
Pending the outcome of a separate appeal by the Department of Justice, Dearie is expected to determine whether federal prosecutors will remain barred from reviewing some of the seized material in their criminal investigation of Trump.
The scheduled conference in Brooklyn marks the latest legal phase in the case that began when the FBI executed a court-approved search warrant and found dozens of classified documents and some marked “top secret” and “secret,” mixed in boxes with photos, news clippings and other material.
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Court filings submitted by prosecutors in the case overseen by Cannon have outlined evidence for a potential obstruction of justice case for concealing federal records at Mar-a-Lago. Such documents are supposed to be turned over to the National Archives and Records Administration.
Trump has criticized the search and criminal investigation as a politically motivated and improper government invasion of his home.
Cannon imposed the legal bar halting federal investigators’ review of the documents in response to Trump’s lawyers’ argument that some of the seized material was subject to attorney-client or executive privilege. Her decision has temporarily halted one of the most consequential of multiple Trump investigations.
Federal prosecutors disputed those claims, arguing that roughly 100 documents are classified or top secret records, which they said are not subject to any privilege arguments by a former president.
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Cannon rejected their arguments last week, and also tapped Dearie as the special master, a third-party official who will review the material.
Dearie has previous experience reviewing secret records. He previously served on the U.S. Foreign Intelligence Surveillance Court which oversees warrants for government wiretapping and spy investigations.
However, federal prosecutors haven’t given up the legal battle.
Last week, they submitted arguments challenging Cannon’s ruling to the U.S. Court of Appeals for the Eleventh Circuit. They asked judges of that court to issue a stay of Cannon’s ruling solely for the classified and secret documents.
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If granted, a stay would enable the criminal investigation of Trump to resume, even as Dearie reviews the rest of the material seized by the FBI.
Trump’s lawyers responded to DOJ’s appeal Tuesday, arguing Cannon hadn’t made a mistake and that her order wasn’t appealable under court rules. Trump has a personal interest in his presidential records, whether they are marked classified or not, the lawyers argued.
In its Monday night filing to Dearie, the Department of Justice said the special master would not review the classified material if the appeals court grants the government’s motion for a partial stay. If the appellate judges uphold Cannon’s ruling, “the government will propose a way forward,” the filing said.
In Trump’s Monday night filing, Trusty suggested that Dearie extend a proposed Oct. 7 deadline for both sides to complete the inspection and labeling of the seized documents.
However, Trusty added: “With the government’s help, in terms of access to the materials and clearance for Plaintiff’s attorneys, we believe the parties can meet the expected deadline of Nov. 30.

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