“Former President Donald Trump admitted to taking droves of documents with him to Mar-a-Lago, but argued in a new court filing that they were ‘personal’ and that ‘is not subject to challenge,'” the tabloid Daily Mail reported on Monday, November 14, 2022 (see story here).
Trump’s legal team argued “a president determines whether a document constitutes a Presidential record or a personal record,” the Daily Mail said.
This posture, of course, elevates the presidency to an imperial throne, whose authority is considered unchallengeable. This is a strange argument to make in a court challenge against a governmental action (i.e., the FBI’s seizure of Mar-a-Lago documents).
Apparently perceiving this as a Darth Vader argument, they hedged by adding “his decision to retain certain records as personal is entitled to deference, and the records in question are thus presumptively personal.”
Government lawyers responded by saying Trump can’t designate presidential records as personal records “simply by saying so” or “by the act of removing them from the White House.” Federal law, not Emperor Trump, defines what constitutes presidential as opposed to personal records.
I’m not sure what they said about Trump’s deference and presumption arguments, but the Supreme Court isn’t showing President Biden much deference, and Trump-appointed federal judges aren’t treating his executive orders as rebuttably, much less conclusively, presumptively correct.
The imperial argument may prove too far-reaching even for judges friendly to Trump. Therefore, I expect the courts to rule this particular light saber is nothing more than a flashlight.
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