(Trends Wide) — Former President Donald Trump argued in a recently made public court filing that a president can decide whether his White House documents are personal, and that he had determined that all the records he brought to Mar-a-Lago were in fact his property.

This argument represents the latest legal attempt by Trump to stop parts of the criminal investigation into documents containing sensitive information that were stored at his Florida compound after he left the White House.

The Justice Department responded by explaining that Trump’s legal theory about when he can consider his White House records personal is flawed.

“The plaintiff may not designate records that qualify as ‘Presidential Records’ under the Presidential Records Act … as his ‘personal’ records simply by saying so,” the department said. He added that such a theory would “undo” the purpose of the law.

The claims came in duels on “global issues” that Trump and the Justice Department filed under seal last week to make their far-reaching arguments about how independent expert witness Raymond Dearie, a high-ranking judge in Brooklyn, should approach his case. review of materials the FBI seized from Trump’s Florida home in August.

District Judge Aileen Cannon, who appointed Dearie to conduct an independent review of the documents that must be withheld from investigators for reasons of privilege, unsealed a redacted version of the briefs Monday.

The Justice Department told the investigating expert that prosecutors should be allowed to use nearly 2,800 documents in their criminal investigation while remaining privilege disputes are resolved.

That would mean criminal investigators could get access to most of the documents taken from the former president’s Florida resort that are still in dispute, while privilege issues are resolved over a document Trump claims is protected by attorney privilege. -client and more than 121 documents it says are protected by executive privilege, according to the new Department of Justice (DOJ) filing.

Trump has tried to classify “several hundred” of the seized records as his personal records, the DOJ said. While attacking his logic for doing so, the department also argued that even if the records are personal, they should not be withheld from the federal criminal investigation into the alleged mishandling of Trump White House materials found at Mar-a-Lago.

The former president argued that if the federal government disagreed with the way he designated the records as personal, he would have to sue him.

“Plaintiff was authorized to designate, and did designate, the seized materials as personal records while he served as President,” Trump’s legal team wrote. “President Trump was still serving his term when the documents in question were packaged, transported, and delivered to his residence in Palm Beach, Florida. Therefore, when he made a designation decision, he was President of the United States; his decision to withhold certain records as personal is entitled to deference, and the records in question are therefore presumptively personal.”

The review of the disputed documents by the investigating expert, which totals some 22,000 pages, does not include examination of the Mar-a-Lago documents that were marked as classified. Those documents are being examined by intelligence authorities and criminal prosecutors.

Dispute over executive privilege

In addition to its rebuke of what Trump considers personal records, the department also responded to Trump’s assertions that if Dearie rejects Trump’s argument that a document is a personal record, the former president could then assert executive privilege over the document. document. “The investigating expert should not allow these kinds of unorthodox moves,” the DOJ wrote.

The department also pushed again for Trump to be forced to testify under oath if the government accurately described what it took from Mar-a-Lago.

This would put the former president under an obligation to back up public and out-of-court statements that suggest the FBI planted evidence in the record. Trump’s lawyers have resisted requests that he authenticate the government’s description of what was seized at his resort.

In the new filing, the department pointed to Cannon’s earlier move to block a requirement for such a declaration. He did so at the time based on the principle that Trump had not had an opportunity to review the seized materials, the DOJ noted.

“Now that the plaintiff has reviewed the seized materials and has asserted that the overwhelming majority of them are his personal records, considerations of fairness, integrity and impartiality require the plaintiff to do what the government has done, that is, check the inventory of assets or correct him if he thinks he is wrong,” prosecutors said.