Trump’s declassification claim may offer limited defense
Donald Trump’s claim he declassified the suite of documents seized by authorities after they searched his Florida home may provide only a limited defense for the former president, if the Justice Department decides to pursue what would be a historic case.
Trump, like any U.S. president, would have wide-ranging powers to declassify documents — but not in sweeping fashion and not without igniting a chain of events that would document the request, according to legal experts interviewed by The Hill.
The broad power also likely wouldn’t permit Trump to store tranches of presidential records in his post-presidential home.
Trump has argued the documents removed from his home were “all declassified.” He later elaborated in a statement to Fox News that he had “a standing order” to declassify any documents.
But experts say there should be traces of such a decision.
Kel McClanahan, executive director of National Security Counselors, a nonprofit law firm specializing in national security law, said a presidential decision to classify material reverberates through an intelligence apparatus that carefully tracks documents and must then recategorize them appropriately.
“When you declassify a document, it’s declassified everywhere,” he said. “The CIA’s copy is declassified, the NSA’s copy is declassified, the National Security Council’s copy is declassified.”
“And so when you declassify a document, even with a wave of your hand, you have to say that to someone, so that they mark it or propagate a memo out to people that this document is now declassified,” added McClanahan. “And they would do that if there was literally anyone in the room when he said, ‘I am declassifying this document,’ they would have made a note of that.”
McClanahan noted that no one in Trump’s orbit has yet pointed to anything in writing from Trump.
“An oral order will not suffice unless somebody can prove that it existed,” he said.
Trump has offered an evolving defense for why classified documents were found at his Mar-a-Lago estate.
When the FBI first searched his home last Monday, he said he had been “working and cooperating with the relevant government agencies” ahead of the search.
But reporting has since indicated that law enforcement previously subpoenaed documents Trump may have been keeping at his Florida residence and that one of his attorneys signed a sworn declaration in June indicating there were no additional classified documents on the property.
Law enforcement after the search of Mar-a-Lago removed 11 sets of what appear to be classified documents from the property, according to a warrant unsealed on Friday.
The warrant included the eye-popping revelation that Trump is under investigation for violating the Espionage Act, prompting the former president to say the information had all been declassified.
He has also since claimed that other materials among those taken by the FBI were either protected by attorney client privilege or executive privilege.
Declassification is usually done on a document-by-document basis, and even the more sweeping efforts to do so typically involve a specific program.
And there are certain types of intelligence covered by other laws, like those dealing with nuclear programs where such power is held by the Department of Energy.
Jamil Jaffer, who previously worked at the Justice Department’s National Security Division and as counsel to Republicans on the House Intelligence Committee, said presidents also usually provide a rationale for declassification or demonstrate that by showing a public need to release the information.
Trump didn’t appear to take these steps.
“You didn’t execute a document that showed the declassification. You didn’t tell somebody you declassified them. You didn’t put them out in public. … They still have classified markings on the box, you didn’t cross it out and initial it. You didn’t appear to do anything, so what’s the proof that you declassified them?” Jaffer said.
“What’s the evidence to suggest you declassified them other than your say so now after the fact now that you’re being investigated for having improperly retained classified materials?” he added.
Experts said the Justice Department is likely now in communication with a host of intelligence agencies to see if they received word to declassify any of the information that was seized at Mar-a-Lago.
But even if Trump did declassify documents, that isn’t a defense for several of the statues cited by the Justice Department.
The Espionage Act doesn’t require mishandling classified information, just national defense information.
It’s a detail that has led some to lobby for updating language they say is overly broad, but they’ve been met with resistance in Congress.
“Many of Trump’s allies have led the charge to never change the Espionage Act,” McClanahan said.
“And what is happening now is that the same statute that is used to go after people who leaked to the media, to go after the Reality Winners and the Chelsea Mannings of the world, regardless of what you think about them, this was what they were prosecuted under. And these guys had no problem with that whatsoever.”
McClanahan suspects DOJ is eyeing a provision of the law that allows for prosecution of those who willfully retain or fail to deliver national defense information.
But Mark Zaid, a national security law expert who was part of a team representing two of the whistleblowers familiar with Trump’s 2019 call to Ukraine President Volodomyr Zelensky, said it would set a dangerous precedent to pursue Espionage Act charges against Trump if he wasn’t in possession of important classified materials.
“As a policy matter, I would really be concerned by the slippery slope that would be pursued if the Justice Department indicted a former president for possessing unclassified national defense information. That, I would think, would be a very, very bad idea,” he said.
The other two statutes listed on the warrant similarly do not hinge on possessing classified materials and align with the Presidential Records Act — which carries no criminal penalties but states that presidential records are the property of the government, not the chief executive.
One bars concealing, removing and mutilating government documents while the other prohibits similar actions when done “with the intent to impede, obstruct, or influence [an] investigation.”
McClanahan said the last statute was likely implicated by “constantly telling people in response to subpoenas and searches and meetings, that he did not have any classified information.”
There’s also room for possible charges under another statute not listed in the warrant that bars the “unauthorized removal and retention of classified documents.”
“It’s the one that the people who have a particular interest in karma point out a lot because it’s the one that until 2018 was a misdemeanor that a lot of people would plead to get out of an espionage charge,” McClanahan said.
The charge was upgraded from a misdemeanor when Republicans held majorities in Congress and Trump was in office.
“So now it’s a felony, thanks to President Trump and his allies, that is now likely going to be aimed against him,” McClanahan said.
Whether the Justice Department will move forward with charging Trump is another question entirely.
Zaid said if anything leads to charges, it’s likely to be a pattern of obstructing officials’ investigation.
“The timeline in this case seems to show a deliberate or unbelievably gross incompetent level of mishandling of the classified information by the fact of multiple requests, multiple statements that ‘we’ve given you, the executive branch, everything we have,’ and then multiple examples of finding out that that’s not true,” he said.
Still, he said the initial burden may fall on whoever helped Trump in collecting the documents and getting them transported and situated at Mar-a-Lago.
“The question is, who are those people? Are they former White House people who had and maybe still have security clearances, and who knew of the existence of these documents at Mar-a-Lago? There may be a handful of other people whose liability is as great if not greater than Donald Trump, and they may be the low hanging fruit that the Justice Department should pursue to find out exactly the level of Donald Trump’s knowledge of these potential infractions,” Zaid said.
“I think the low hanging fruit would be used, if the facts justify, to basically turn them against the godfather.”
But moving forward is a major decision point, one made all the more difficult by claims from Trump that the investigation is nothing more than political persecution.
“In a lot of ways, the Justice Department has put themselves in a pretty tough situation,” Jaffer said.
“The accusations of politicization, the potential defenses that he has like the classification – there are a lot of reasons you wouldn’t pursue a prosecution like this. That being said, once you’ve made the decision to obtain a warrant, to get the warrant, to execute it, now you’re pretty far down the road. And if you have the evidence that a law was violated, then it’s hard not to bring the prosecution,” Jaffer said.
Zaid said there is a case to be made that some of the language included in the Espionage Act was never meant to apply to the president directly. The law only refers to officers and employees of the executive branch.
“It was never envisioned that it would be the president of the United States that would run afoul of these statutes. So there are some legal arguments that can be potentially made,” he said.
Jaffer said courts also may be hesitant to weigh questions over how broad the president’s power is to declassify material if they feel it’s a political question best dealt with by Congress.
“Will a court really look behind a president’s decision to declassify? If the president says, ‘I declassified these materials for the following three national security reasons,’ it seems unlikely that a court will question the merits of that decision, particularly given the historical deference courts generally give to the executive branch in national security,” he said.
But McClanahan said DOJ’s hesitance seems squarely centered on Trump’s status as a former president.
“The fact that they have not already indicted him is literally because he is former President Trump,” he argued. “If he were anyone other than a former president with a million-strong mob at his beck and call, he would be charged right now. And that is what the DOJ is thinking about. And that is what [Attorney General Merrick] Garland is thinking about.
“If he were anyone else, we would not hesitate to arrest him.”