Trump's first day with the special master isn't going very well
Photo via AFP

After a conference call fiasco, Judge Raymond Dearie -- Donald Trump's hand-picked special master -- on Tuesday clashed with the president's lawyers over their refusal to answer questions from the court.

Dearie said that it isn't his role to determine whether or not the documents are classified, it belongs to the executive branch. He explained that when he looks at the case he sees "top secret" marked everywhere.

Dearie asked how he could dispute what the executive branch has indicated on the documents themselves and said that he isn't in a position to argue against it. So, he asked Trump's team what their proof was of declassification.

Trump's lawyers revealed Monday night that they didn't want to answer the judge's questions about classified information because they anticipate that the former president will be criminally indicted by the Justice Department. They have not indicated why they think an indictment is certain.

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The Trump lawyers also claimed that they needed access to the top secret documents so that they could prepare a proper defense. Dearie didn't agree and ultimately moved on to question public claims that Trump declassified all of the documents in question. Trump's lawyers have been unwilling to say that publically, however, so Dearie pressed the issue.

"How am I going to verify the classification?" Dearie asked Trump's lawyers.

"We're not in a position nor should we be in a position at this juncture to fully disclose a substantive defense," said Trump lawyer Jim Trusty. "We should not be in a position to have to disclose declarations, witness statements."

"My view is you can't have your cake and eat it too," said Dearie.

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"This is a civil action seeking extraordinary relief," former federal prosecutor Renato Mariotti said. "As Judge Dearie noted, Trump has the burden of proof. Asking the court to find that classified documents have been declassified without presenting any evidence of declassification is a non-starter."

Trusty explained he wanted the special master to push the Department of Justice to give them access to the documents for their trial preparation.

Dearie was concerned that were he to hand over classified documents they could make their way into the wrong hands.

“If you need to know, you will know," Dearie said on two occasions, according to law professor Jennifer Taub, who was in the court.

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"Attention here seems to be Donald’s lawyers saying they can’t figure out whether something is classified or whether a presidential records act designation would override the classification markings unless they see it first," Taub said.

What was made clear in court is that Trump's own lawyers have no idea what the former president actually had. It's unknown if Trump simply hasn't told them or Trump doesn't himself know.

“What business is it of the court? … As far as I’m concerned that’s the end of it," Dearie explained, assuming the Trump side doesn't have any evidence of declassification.

Dearie seemed insulted by the Trump lawyers' claim at one point that he was going beyond the scope of Judge Aileen Cannon's orders.

The hearing lasted about 35 minutes in total.

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