In the dispute over government documents confiscated from Donald Trump, his lawyers use an unusual argument. Simply because the documents were taken to his residence rather than to the National Archives during his tenure as president, they have become his private papers, court documents released Monday said. The lawyers speak of a classification “through action”, a formal procedure was not even necessary.

The lawsuit involves papers that the FBI seized at Trump’s Mar-a-Lago estate in Florida in early August. There were a total of around 13,000 documents with almost 22,000 pages, including around 100 documents with a secret note. The search was triggered by a dispute between Trump and the National Archives, which manages documents from presidents. It tried for months to get papers from Trump from his tenure. He could have made himself liable to prosecution by taking and storing the documents.

The US Department of Justice did not take well to the arguments put forward by Trump’s lawyers. “This claim makes no sense,” government lawyers wrote in their response. A president must expressly prove that during his tenure government documents were declared private papers.

Results of the special auditor expected soon

Trump went to court over the confiscated documents. A judge in the Florida case appointed a special auditor at his request. This is to investigate whether the papers fall under attorney-client privilege – or the so-called executive privilege, which in the United States can shield a president’s papers from the public. The Justice Department has already obtained before an appeals court that it can at least access the documents with the classified documents without an assessment by the special investigator in the investigation.

The court documents released on Monday are the parties’ recommendations to the special auditor, who is due to present the first results of his evaluation in mid-December.

As an added safeguard, Trump attorneys also said that if the special auditor were to classify papers as government records, the documents would need to be shielded from executive privilege. The government side burst at these arguments: “It’s a shell game and the special auditor shouldn’t get involved,” the reply said. The documents could not be private and protected by executive privilege at the same time.