Former President Donald Trump's legal team has acknowledged that he could face criminal charges vis-a-vis the "classified documents" seized by the FBI during the August 8 search of the Mar-a-Lago residence in Florida.
The FBI seized 11 boxes of documents in the raid and the Department of Justice claimed many of them were classified documents that could come under the purview of the Espionage Act.
Trump denied any wrong-doing saying he had declassified all documents that he took home but legal experts had questioned the validity of such a claim including his own White House staff saying there was no such communication and that the authority to declassify any secret document lay with the intelligence authorities.
In a filing late Monday evening, Trump's team told the special master that it is hesitant to provide specifics on what may have been declassified because the issue may become a defence against future criminal charges, media reports said.
If they were forced to disclose this specific declassification evidence, "the Special Master process will have forced the plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court's order".
The Justice Department has made it clear that the Mar-a-Lago saga is a serious criminal investigation, and Trump's team seems to be seriously contemplating the possibility of the former President's possible indictment. It is not yet known if the Justice Department will pursue criminal charges against Trump, although former Attorney General William Barr has said the evidence seems to be trending in that direction.
It was revealed in unsealed court filings that Trump is being investigated under the Espionage Act as well related to laws regarding obstruction of justice. The ability of the FBI to use the records seized from Mar-a-Lago in its criminal investigation was halted by a federal judge as a special master was appointed, the reports said.
Trump and some of his allies have claimed in public numerous times that he declassified all of the documents that had been at his Florida resort home of Mar-a-Lago before it was raided by the FBI in August, but those declassification arguments have not made it into Trump's court filings.
"The draft plan requires that the Plaintiff disclose specific information regarding declassification to the court and to the government," Trump's lawyers said Monday. "We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property." Rule 41 relates to motions seeking to have cases dismissed.
Florida Judge Aileen Cannon, a Trump appointee, named the special master suggested by the former President. Cannon said she did not find it appropriate simply to accept DOJ's claims that the 100 records with classification markings on them seized by the FBI are, in fact, classified government documents, and she ruled that the special master should prioritise reviewing that narrow batch to see if the records are indeed classified.
The Justice Department, for its part, has pointed out in court filings that, despite Trump's public claims about declassification, his lawyers have not specifically made the declassification claims in federal court, the reports said.
Special Master in Trump's documents case Judge Raymond Dearie, who notably signed off on the final FISA warrant against Trump campaign associate Carter Page when he was a Foreign Intelligence Surveillance Court judge, currently serves in the Eastern District of New York, and both Trump's team and the Justice Department referenced a "Draft Plan" that Dearie had provided them ahead of a Tuesday afternoon hearing at his Brooklyn federal courtroom.
The Justice Department told Dearie on Monday that it had applied for a stay to the 11th Circuit's Court of Appeals and that if the appeals court stays Cannon's ruling on documents with classification markings, then Dearie will not review those documents, but if the circuit court does not stay that ruling, then "the government will propose a way forward".