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Trump's lawyers and DOJ head to court over request for independent arbiter


Former President Donald Trump is trying again.


His lawyers dropped another court filing about the classified documents the FBI recovered from his Florida residence. Trump has not denied that he took large numbers of sensitive documents when he left office. He's told his followers he declassified them, but his lawyers still have not made that claim in court, where they could be sanctioned for lying. Instead, Trump is pushing for a special master. This is an independent arbiter who would decide what's there.

INSKEEP: NPR justice correspondent Ryan Lucas has been following all the turns of this case. Ryan, good morning.

RYAN LUCAS, BYLINE: Good morning, Steve.

INSKEEP: I want to put Trump's lawyers' filing in context because they're responding to the Justice Department, which filed earlier in the week. What did the Justice Department say?

LUCAS: Well, the Justice Department says that there's no legal basis to appoint a special master here. It says, legally speaking, the documents at the heart of this case are presidential records and classified documents, and they don't belong to Trump. They belong to the United States. The department says precedent rules out any notion of potential claims of executive privilege. And on the question of materials that could be covered by attorney-client privilege, the government says its own filter team - so basically agents who aren't a part of the investigation - has sifted through the documents, set aside those that are potentially covered by attorney-client privilege and handed everything else over to the investigative team.

So that review is done, and the investigators are moving forward. The government also says appointing a special master would impede the FBI's ongoing criminal investigation, as well as the U.S. intelligence community's national security review of the risk from the improper storage of these documents.

INSKEEP: So they're effectively saying that Trump has no legal right to slow down the process with this outside person. But Trump's lawyers got to reply. What did they say?

LUCAS: Well, Trump's attorneys are still very much pushing for a special master. Trump's attorneys want the special master to go through everything that the FBI took to identify, they point out, specifically materials subject to attorney-client privilege or executive privilege. They argue that the FBI's filter team isn't a sufficient buffer here to ensure that privileged materials are properly protected. The attorneys for Trump also included some of the fired-up, accusatory language that we've heard from the president himself. In this filing, they call the investigation an unjustified pursuit of criminalizing a former president's possession of personal and presidential records. That's how they sum this all up.

INSKEEP: Interesting that they said personal as well as presidential records. But did Trump or his lawyers answer some of the most damaging parts of the Department of Justice filing here - for example, the description of hiding documents over the past many months?

LUCAS: There are a lot of damaging details in the new Justice Department filing. Some of the ones you're talking about there relate to possible obstruction. The department said the FBI had evidence that government documents were likely concealed and removed from a storage room at Mar-a-Lago where they were being kept. The department said that Trump's representatives signed a certification in June, swearing that Trump's attorneys had done a thorough search of Mar-a-Lago and turned over all classified materials that were there. But of course, the FBI, we know, found more documents in their search in August - twice as many, in fact - as Trump's attorneys handed over in June, which raises the specter of potential obstruction of justice here.

Trump's attorneys, as to your question, no, they didn't really tackle this directly in their filing. But Trump himself did react on his social media platform. He lashed out at the government over a photo in the Justice Department's filing that shows classified documents on the floor at Mar-a-Lago. He said the FBI took the documents out of cartons and spread them around on the carpet to make it look like a big find. But by saying that, Trump's seemingly acknowledging that he had classified documents at Mar-a-Lago and that he knew it.

INSKEEP: Doesn't deny that they were in the cartons. So what happens today in court?

LUCAS: Well, the federal judge is going to hear arguments from both sides and likely make a decision on a special master.

INSKEEP: NPR's Ryan Lucas, thanks so much.

LUCAS: Thank you. Transcript provided by NPR, Copyright NPR.

Ryan Lucas covers the Justice Department for NPR.