The disclosure of briefs from both President Trump’s legal team and Department of Justice lawyers brought into focus the stakes of the recommendations the special master, Judge Raymond Dearie, is obliged to render by the next month. 

The two sides will ultimately have to convince a federal district court judge, Aileen Cannon, of the persuasiveness of the story they are telling regarding Mr. Trump’s archive. The trailers for those narratives are found in a pair of “global issues” briefs filed last week, and just unsealed. 

Special Master Dearie, a judge himself, will sift and weigh the briefs as he works to complete his mandate to advise Judge Cannon on the merits of Mr. Trump’s position that the documents in question are not grounds for criminal charges because they are protected by claims of executive and attorney-client privilege.

The suite of arguments from both sides provides a preview of the cases they will make should Attorney General Garland decide to seek an indictment of Mr. Trump for transferring documents to the former president’s Mar-a-Lago compound from the White House.

Mr. Trump’s team argues that the president “determines whether a document constitutes a Presidential record or a personal record.” This would mean that the chief executive could decide whether the disposition of a particular record is subject to scrutiny, or merely a private matter. 

If the records are deemed “personal,” they are not subject to the Presidential Records Act, a 1978 law that dictates that the government and not the chief executive “shall reserve and retain complete ownership, possession, and control of presidential records.”

The DOJ hit back on that claim, maintaining that the plaintiff “may not designate records qualifying as ‘Presidential records’ under the Presidential Record Act as his ‘personal’ records simply by saying so.” That ability, they believe, would “nullify” the law’s purpose. The National Archives explain that the act “changed the legal ownership of the official records of the President from private to public.”

The government argued that it should be allowed to use the 2,800 documents recovered at Mar-a-Lago in building its case. It concedes only that a little more than 100 documents could plausibly be protected by privilege. The riders of the 11th United States appeals circuit ruled that the documents marked as classified are not under Judge Dearie’s purview. 

The former president’s team argues that “he need not put forth documentary evidence of his designation decisions, because his conduct unequivocally confirmed that he was treating the materials in question as personal records.” The DOJ responds that Mr. Trump cannot simply claim the 22,000 pages at issue as his own by fiat.

The government’s brief warns Judge Dearie not to fall for what it suggests is a “heads I win, tails you lose” line of argument from Mr. Trump — either the records are personal, and thus not subject to the strictures of the Presidential Records Act, or else they are presidential records, and thus protected by executive privilege. 

Judge Dearie’s report to Judge Cannon is due by December 16. While she will have the final say on whether these documents can be used to build a criminal case against Mr. Trump, her decision will be subject to appellate review, which has thus far not been kind to Mr. Trump.  

Before that happens, the government demands that Mr. Trump admit that the inventory of the documents seized at Palm Beach is accurate, calling on him to “verify the property inventory or correct it if he believes it to be in error.” Mr. Trump has alleged that the DOJ planted unspecified documents on his property. 

Any decision to charge Mr. Trump would likely occur once he has announced his 2024 candidacy for president. He is widely expected to make that declaration during a primetime speech Tuesday night at, of all places, Mar-a-Lago.