“President Trump was still serving his term in office when the documents at issue were packed, transported, and delivered to his residence in Palm Beach, Florida,” the Trump team wrote.
“Thus, when he made a designation decision, he was President of the United States; his decision to retain certain records as personal is entitled to deference, and the records in question are thus presumptively personal," Trump's lawyers wrote.
The Justice Department, for its part, accused the Trump team of "gamesmanship" and said that Trump was not entitled to claim as personal records documents that were clearly presidential. It also argued that Trump could not invoke executive privilege, a legal principle that permits the president to keep information secret to protect the confidentiality of presidential decision-making, as a way to now block the FBI from reviewing certain records.
The FBI seized roughly 13,000 documents during its search of Mar-a-Lago, including about 100 with classification markings.
A federal appeals court in September lifted a judge's hold on the Justice Department's ability to use the classified documents as part of its criminal investigation, but department lawyers want to be able to review the unclassified records as well because they say they may contain evidence of a crime.
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