Declassified? It doesn't matter. Trump didn't own it, it belongs to the government. That's theft of sensitive governmental documents that pertain to national security.
That’s not how any of this works.
Anything that falls under the executive privilege umbrella now belongs to the National Archives.
Anything that was attorney-client privilege simply saved them some time in the crime-fraud exception warrant that’s almost certainly coming.
Former President Donald Trump and his allies say that any sensitive White House documents he brought with him to his Mar-a-Lago estate had been declassified, but some legal and presidential record experts are skeptical of that claim — and say that Trump could be in criminal jeopardy regardless.
While the Justice Department has a long history of prosecuting cases involving the mishandling of classified information, no such case has ever been brought against a former president — the one government official who can declassify information at will.
"As the facts stand now, his defense would be, ‘I declassified those documents. I am not therefore in possession of classified documents now,'” said Charles Stimson, a senior fellow with the conservative Heritage Foundation and a former federal prosecutor.
Others take a different view — including, it seems, the FBI, which executed a search warrant at Trump's Florida resort on Monday tied to classified information Trump allegedly took with him from the White House in January 2021. Trump lawyer Christina Bobb said Tuesday that the warrant left by agents indicated they were investigating possible violations of laws dealing with the handling of classified material and the Presidential Records Act.
The 1978 Presidential Records Act, which requires presidents to turn over documents to the National Archives at the end of their administration, lacks an enforcement mechanism, but there are multiple federal laws regarding the handling of classified documents. Trump signed one such law in 2018, increasing the penalty for "unauthorized removal and retention of classified documents or material" from one year to five years in prison.
But those in Trump’s orbit say that no president is personally bound by the removal and retention rules governing classified documents, which can be declassified if the president simply says they are, according to Ric Grenell, who was Trump’s acting director of national intelligence and who handled highly classified information.
“There is no approval process for the president of the United States to declassify intelligence. There is this phony idea that he must provide notification for declassification but that’s just silly. Who is he supposed to notify? I think it’s the height of swampism to think the president should seek bureaucrats’ approval,” Grenell told NBC News, emphasizing that he wasn’t personally speaking for the president.
Trump himself said on his Truth Social platform Friday, "It was all declassified."
Richard Immerman, a historian and an assistant deputy director of national intelligence in the Obama administration, said that, while the president has the authority to declassify documents, there’s a formal process for doing so, and there's no indication Trump used it.
“He can’t just wave a wand and say it’s declassified,” Immerman said. “There has to be a formal process. That’s the only way the system can work,” because otherwise there would be no way of knowing who could handle or see the documents.
“I’ve seen thousands of declassified documents. They’re all marked ‘declassified’ with the date they were declassified,” Immerman said.
That does not appear to have been the case with some of the documents that were returned to the National Archives from Mar-a-Lago this year. Archivist David S. Ferriero, an Obama appointee, said in a letter to the House Committee on Oversight and Reform in February that his agency had "identified items marked as classified national security information within the boxes” from Mar-a-Lago.
Kash Patel, a Pentagon chief of staff during the Trump administration, told Breitbart News in May that the documents previously recovered from Mar-a-Lago had been declassified by Trump, but their markings were not updated. “Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” Patel said then.
“It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more,” Patel said then, adding that he was with Trump when the then-president said, “We are declassifying this information.”
Patel, who declined comment on the documents this week, told Breitbart that the “White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified.”
A source who had discussed the matter with Trump but was not authorized to reveal those conversations said the former president wasn't concerned with formal protocol.
"We’ve told him there’s a process and not following it could be a problem but he didn’t care because he thinks this stuff is dumb,” the source said. “His attitude is that he is the president. He is in charge of the country and therefore national security. So he decides.”
Bradley Moss, a lawyer who specializes in national security issues, said, "That's not how it works."
"Trump could say we're declassifying this until he's blue in the face, but no one is allowed to touch those records until the markings are addressed," said Moss, a frequent Trump critic on Twitter.
He noted that Trump and White House officials should have been aware that more would be needed to declassify documents given their own experience on the issue. In October 2020, Trump tweeted, “I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. Likewise, the Hillary Clinton Email Scandal. No redactions!”
When news organizations sought to obtain the supposedly declassified documents, they were told they were still under wraps. Trump chief of staff Mark Meadows said in a sworn court filing in the case, “The president indicated to me that his statements on Twitter were not self-executing declassification orders and do not require the declassification or release of any particular documents.”
In the current dispute, the apparent lack of a paper trail showing that Trump declassified the documents before he left office could be a problem for the former president, said Stephen Vladeck, a University of Texas School of Law professor who specializes in national security.
NEW: Trump’s haphazard handling of classified info as president could actually help him fend off some (but not all) potential charges re: classified info — plus, how the case of Scooter Libby could come into play. Story w/ @joshgerstein
“The classification issue may not be where prosecutors are going… This may be more about taking & retaining —stealing govt documents as opposed to mishandling classified info… They’re using the classified piece of this as part of the political messaging”
French President Emmanuel Macron has to be wondering why former President Donald Trump retained, of all things, information about him. I certainly am; aren’t you? According to an inventory of what the FBI took from Mar-a-Lago during last week’s search and recovery of materials from Trump’s home, the French dossier, so to speak, stood out. Why Macron? Lest we forget, France is a friend and partner to the U.S., most notably in the unified response to Russia’s invasion of Ukraine.
For now, we’re stuck with a maddening uncertainty about the true stakes of the matter: If Trump was holding on to personal information—perhaps mere tittle-tattle—about the leader of an allied nation, as well, reportedly, as top-secret intelligence about nuclear capabilities, then why? We swing between gossip and fear, the scurrilous and the deadly serious, The Real Housewives and The Walking Dead. We parse the judicial warrant, including an Espionage Act charge, for clues. The temptation to indulge in overheated speculation, particularly for some of Trump’s more partisan critics, is irresistible—but irresponsible, as The Atlantic’s Tom Nichols has warned.
Amid all of this, we have a tendency to think of the drama as an internal U.S. issue about a reckless former president, the legal claims against him, and how the politics will play out. Still, it is the mere fact of the papers—regardless of what is in them—that poses a significant national-security problem. From the point of view of America’s international partners and allies, France included, the documents were in the hands of a rogue, possibly dangerous former president. That they are in the possession of the FBI now is important, but the damage is done. Trump, even out of the Oval Office, continues to make the U.S. an unreliable ally.
The best case here for Trump—that the substance of the papers proves insignificant—is still a challenge for the United States, because we are finally a nation among other nations. If we are haunted by speculation about what is in the documents, so, you can be sure, are our allies. They will be concerned about whether any of the information in the documents is about them, whether any of it has been shared by Trump, and whether, perhaps most worrying, their intelligence efforts—resulting in information they shared, trusting the U.S.’s capacity to safeguard secrets—may have been compromised.
Intelligence is about collection and consumption. Most nations, enemy and ally alike, use similar methods. Their intelligence agencies collect information by a variety of means that includes old-fashioned spying as well as high-tech efforts. That collected data is then analyzed and results in intelligence assessments that are disseminated through a nation’s national-security apparatus. Who gets to read what is carefully controlled by varying degrees of classification status.
In between collection and consumption of information, the U.S. will work with the intelligence agencies of its allies to supplement, cross-reference, and even challenge such assessments. This can take place either through bilateral nation-to-nation contacts, or through more formal multinational institutions such as NATO, the European Union, and the intelligence-sharing arrangement known as “Five Eyes” (a legacy of radio-transmission monitoring during World War II).
Presidents are not collectors of intelligence information; they are consumers of it. Their prerogative is then either to challenge it or to make policy recommendations based on it. And responsible presidents and former presidents are trusted protectors of the nation’s most closely guarded secrets.
During the Trump administration, our intelligence agencies adapted to the president’s wayward behavior by limiting his access to sensitive information, including to that derived from foreign sources. This seemed wise after Trump revealed information in 2017 about Israeli intelligence sources in Syria to Russia’s defense leaders. This indiscretion resulted in Israeli concern that Russia would pass on that intelligence to its military partner in Syria, Iran.
Joe Biden’s team has returned some normalcy to an intelligence community that knew little of it for four years. But the disclosures about Trump’s retention of top-secret classified material at Mar-a-Lago have catapulted past misconduct into the present-day national-security arena. With the FBI raid, the Biden administration will need to assure allies that their shared efforts with us are still reliable.
Intelligence is a worldwide enterprise, not ours alone. Although we Americans tend to focus on our own foes—worrying, for instance, whether Trump was too cozy with the Russians or North Koreans—reclaiming the documents, regardless of their contents, was essential to restoring confidence in the U.S.’s ability to protect other nations’ secrets as well as its own. Our allies surely feared what has now been confirmed: that Trump had sensitive documents at a Florida home that was insecure and potentially vulnerable to foreign intelligence agencies. Our adversaries seem to have made this assumption: China is suspected of trying to gain access in 2019.
When Biden came to office, he ensured that Trump would have no access to real-time intelligence by depriving him of the daily briefings that were a traditional courtesy for past presidents. That decision was right and necessary. The Department of Justice in effect continued that effort last week.
Even past classified information has present consequences. NATO is expanding, with Finland and Sweden set to join, and that will involve a further extension of the alliance’s intelligence-sharing arrangements. Russia has hinted at a possible last-resort use of tactical nuclear weapons, and China has been launching missiles menacingly close to Taiwan. Such threats are creating a new urgency at the U.S. Strategic Command to rewrite our nation’s nuclear-deterrence protocols. This seems a particularly crucial moment for the U.S. to have a secure grip on its classified documents, whether they contain nuclear secrets or gossip about the leader of an allied nation.
It’s not about Macron. It’s not even about Trump. It is about the papers—and whether our allies can trust us to keep them safe.
Juliette Kayyem, a former assistant secretary for homeland security under President Barack Obama, is the faculty chair of the homeland-security program at Harvard’s Kennedy School of Government. She is the author of The Devil Never Sleeps: Learning to Live in an Age of Disasters.
Former President Donald Trump claims to have verbally declassified the sensitive records the FBI seized from his Mar-a-Lago compound. It’s not as unprecedented or outlandish an argument as widely believed — if he can prove it happened.
Nearly 20 years ago, Justice Department prosecutors wrestled with the vexing question of whether President George W. Bush and Vice President Dick Cheney could unilaterally authorize Cheney’s chief of staff Scooter Libby to leak to select journalists the key findings of a then-highly-classified intelligence community-wide report on Iraq’s efforts to acquire weapons of mass destruction.
Libby’s claim of the direct but unrecorded disclosure order from Bush and Cheney may have contributed to a decision by Special Counsel Patrick Fitzgerald not to charge Libby with releasing classified information to New York Times reporter Judith Miller and others.
Instead, in 2005, Fitzgerald brought perjury and obstruction of justice charges against Libby, forgoing any charge over the release of the National Intelligence Estimate findings or over the issue Fitzgerald was named to investigate: whether anyone in the Bush White House or elsewhere in government leaked the identity of CIA operative Valerie Plame to journalists.
“The Libby case might have been the first time in memory that the question of unilateral presidential declassifications arose,” said Steven Aftergood, a leading authority on classified information policy. “It was giving one-time permission to a particular individual to disclose information to another particular individual … It highlights the fact that the president purports to, or does, stand outside of the classification system.”
The Libby case is not an apples-to-apples parallel to the current dispute over Trump’s handling of classified materials, but it shows that past prosecutors have seen some nuance in exactly how a president may be able to declassify information without a clear paper trail.
One problem for Trump is that he’s no longer president and his possession of tangible copies of apparently sensitive national security records implicated a host of potential legal concerns. And, as in Libby’s case, there are other charges that could be brought against Trump besides those dealing with classified information. But the episode from the aftermath of the Iraq invasion in 2003 highlights the difficulty in pursuing prosecutions of classified information in cases that have direct links to the Oval Office.
“The issue was and remains murky,” said Aftergood, a former analyst with the Federation of American Scientists.
Criminal cases over breaches or leaks of national security information typically require that the government prove that the information was properly classified at the time or that it was “closely held” under some sort of regime for controlling disclosure.
Ironically, if charged under one of those laws, Trump might be able to cite his own cavalier handling of national security secrets as evidence that information wasn’t particularly “closely held” long before it ended up at Mar-a-Lago.
Trump was viewed by many of his closest advisers as too loose-lipped when it came to secret material, often prone to blurting out something in an effort to show off or impress guests. Well before Trump left office last year, Mar-a-Lago itself was the focus of acute concerns about counterintelligence threats posed by Trump’s handling of sensitive material.
Most dangerously, he revealed highly classified information obtained from an ally — from an Israeli source — to the Russian foreign minister and ambassador when he hosted the two men in the Oval Office in 2017. He also thought nothing of ordering a missile strike on Syria from the patio at Mar-a-Lago, not only in the presence of Chinese president Xi Jinping but also in front of a full dinner crowd.
And Trump frequently asked aides to bring him one of the letters sent by North Korea’s Kim Jong Un — he described them as “love letters” — in an effort to show off to reporters and guests, according to people familiar with the exchanges. On a number of occasions, he appeared to delight in letting his visitors scan the letters before snatching them back and reveling in the audaciousness of such a secret missive.
The letters were among those found at Mar-a-Lago after his presidency and returned to the National Archives during the protracted back-and-forth that led to the raid there last week, according to The Washington Post.
The ambiguity over how presidents can declassify information and whether that has to be formally documented to be effective has prompted some observers to suspect that any charges that emerge from the FBI raid may end up being more akin to theft than a breach of national security.
“The classification issue may not be where prosecutors are going,” said Tom Blanton of the National Security Archive. “This may be more about taking and retaining — stealing government documents as opposed to mishandling classified info.”
Blanton said referencing national security secrets tends to grab public attention more than a dispute about archiving rules.
“Politically, classified information is the clincher,” he said. “They’re using the classified piece of this as part of the political messaging.”
Several times during the Trump presidency, Trump’s freewheeling statements appeared to open the door to the declassification of sensitive programs, only to be walked back by courts or administration officials.
In 2018, a judge rejected an effort by news organizations to release documents related to a CIA program to back Syrian rebels, even though Trump appeared to acknowledge the program on Twitter and in offhand comments. Chief of staff Mark Meadows similarly told a court that a tweet by Trump in October 2020 describing the declassification of large swaths of Russia-related documents was not intended to be a “self-executing” declassification order.
In August 2019, Trump tweeted out what appeared to be a spy-satellite photo of a Iranian rocket that burned up on the launch pad.
When challenged by journalists, Trump took a muscular view of his declassification powers.
“We had a photo and I released it, which I have the absolute right to do,” the president declared.
Similar statements by Trump on declassifiying documents related to Foreign Intelligence Surveillance Act activities also muddled legal efforts toward making public more details about those programs.
Trump isn’t the only former president whose comments while in office revealed the existence of national security programs that were officially shrouded in secrecy. In 2014, President Barack Obama appeared to acknowledge the existence of a program of drone strikes in Pakistan that, until he described it in an online video chat, hadn’t been explicitly acknowledged by intelligence or defense officials.
When faced with private litigants seeking to leverage those sorts of comments to prompt additional disclosures, the Justice Department has frequently argued that off-hand remarks, inadvertent statements or even — in Trump’s case — explicit statements about declassification did not amount to the formal action needed to declassify information the national security state considers “secret” or “top secret.”
Still, sometimes the stances taken by the Justice Department prosecutors in criminal cases and those taken by DOJ lawyers in civil litigation, like Freedom of Information Act suits, don’t seem totally in sync.
For example, the Justice Department declined to prosecute Meadows criminally for contempt for defying a subpoena from the House Jan. 6 select committee, but sided with the panel in a civil suit Meadows brought seeking to justify his refusal on grounds of executive privilege.
DOJ has not yet explained the distinction it drew, but prosecutors often shy away from gray-area cases where potential defendants have a non-frivolous argument that their conduct was technically within the four corners of the law, even if Justice Department lawyers don’t find those arguments persuasive.
Trump himself claimed in a statement last week that the documents seized by the FBI at Mar-a-Lago were “all declassified,” but offered no details. His office also issued a brazen statement claiming that he’d issued “a standing order” that all documents he took to his residence were “deemed to be declassified.”
Other arguments advancing Trump’s claims have come from Kash Patel, who served as an adviser to former Rep. Devin Nunes (R-Calif.) before working on the White House’s National Security Council staff and as acting chief of staff at the Pentagon.
Patel has contended that among the seized files at Mar-a-Lago were documents connected to the FBI and DOJ’s investigation of contacts between Russia and the 2016 Trump campaign. In a statement Friday, Patel said these documents were among those declassified by Trump in the closing days of his presidency. He has argued that Trump had unilateral power to declassify anything, and in fact did so in sweeping fashion with verbal and written orders.
Patel, whom Trump designated on June 19 to be one of his official representatives to the National Archives, contended in a podcast released Sunday that Trump attempted to make some of those Russia-related documents public at the end of his presidency but that many wound up in the custody of the Archives instead. Patel went on to characterize his own interactions with the Archives to attempt to unearth those records.
“I said I have an active security clearance. I’ll come down there and look at it if it’s a classification issue. Why aren’t these documents out?” Patel said. “Why does the American public not have access to the documents that have been declassified? And I did not get a good answer. All I got was another bureaucratic runaround.”
Patel said representatives from the Archives told him that the agency had some of the records but couldn’t locate all of them and that some were returned to the Justice Department.
One former DOJ national security official said the department’s usual deference to presidential prerogatives would be tested in a case where Trump allegedly pursued last-ditch declassification before leaving office.
“I think it’s important to recognize that such authority ultimately springs from Article II’s designation of the President as Commander in Chief — with responsibility to protect the national security of the United States,” said Kathleen Kedian, who now teaches at George Washington University law school. “From the publicly known information, it’s unclear how declassification and removal of these documents to an unsecure location is consistent with that Article II authority.”
Legal experts say that, perhaps more than in any other area, the Justice Department’s decisions on handling classified information cases are governed by norms, guidelines and past practice, more than the literal words of the statutes involved.
The criminal laws could be invoked against a vast number of people inside and outside government, but rarely are, particularly where doing so would pose the possibility of adverse legal rulings.
If prosecutors decide not to charge Trump or anyone else with a classified-information crime, there is always the possibility of charges like unlawfully retaining ordinary government records.
However, even there, the Justice Department rarely resorts to criminal charges, preferring negotiation and other methods. A dispute over Trump aide Peter Navarro’s use of private email led not to a criminal charge for absconding with government property, but to a civil suit earlier this month seeking access to the messages.
Still, the breadth of the records Trump took and the sweeping, aggressive nature of his claims about his declassification powers mean prosecutors may not resolve such disputes in the traditional way.
“The Trump case is certainly breaking new ground and he’s not making it easy for this to go away,” Aftergood said. “He has made mistake after mistake. Even if the government was inclined to give a former president a break, as they might well have been, he’s not making it easy for them.”
Jonathan Lemire contributed to this report.
“We’re looking at maps and sh*t. I’m like, you know, I’m like, ‘Am I supposed to be like in on this sh*t?’”
I hope 1) there is an investigation into classified documents at Mar a Lago, and 2) it includes more than a simple “I never showed them to anyone” statement from Trump.
This clip in a Kid Rock interview on FNC about Trump asking him about North Korea:
I can’t tell if he’s serious about Trump soliciting his advice on North Korea
In contrast to Tucker’s poodle-like yip giggling during this interview, here’s how Fox covered rappers at the WH during the Obama admin. (to be fair, Kid Rock is probably as qualified as Ric Grenell and John Ratcliffe to provide national security advice)
Um, soliciting advice from Kid Rock — the guy who "makes dirty records sometimes" — on what to do about North Korea is just so dangerous. Clearly this question was better suited for Dennis Rodman.
"allegation is: Trump admin has been stashing transcripts of normal phone calls Trump made in a highly classified storage system so that they don’t get out & embarrass the president." Trump never released Ukraine call full transcript; just a summary.
Ukraine Releases ‘Shock’ Call With Giuliani As Trump’s Impeachment Trial Begins • Time
Turner: It depends on what the nuclear information is. You can say nuclear weapons. There are things that are highly classified. There are things that are not extremely classified.
Kash Patel vs. Kash Patel
Patel maintains his line that info was 'declassified,' but admits:
"Cronies actually bureaucratically STOPPED the declassification process"
"I am going to continue that work at the National Archives, I apologize I CAN'T GET IT DECLASSIFIED overnight."
2/2. The Kash Patel appearance is July 4, 2022. Below is a transcript. Link to full video (timestamp 36:26): https://www.youtube.com/watch?v=3eLM2BIQvH8&t=2263s
As I have also said repeatedly, even if the documents were magically declassified, that would not be a defense to any of the 3 federal offenses cited in the MAL arrest warrant.
None of those crimes depend on classification. More to come on that point @just_security
1. For people who don't know the rules of evidence, even if you ignore the co-conspirator admission rule, from just an agency law perspective, Patel made these admissions after he had been named #45's authorized agent regarding the records.
2. Therefor IMO it's not hearsay in the Federal Rules and likely admissible against #45 as an admission of an agent within the scope of the agency.
Not even the President can declassify nuclear secrets: