Published by The Lawfare Institute
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Last week’s revelation that the FBI searched former President Donald Trump’s Mar-a-Lago estate and removed an array of classified documents has triggered new speculation that Trump or some of his associates may soon face criminal charges. The FBI’s move—which was personally approved by Attorney General Merrick Garland—came after a months-long negotiation between Justice Department officials and Trump’s team. Those negotiations had resulted in an earlier handover of classified documents following a subpoena and an assertion by Trump’s attorneys that all classified information had been turned over—a claim that now appears to have been false.
The search warrant released on Friday indicates that the federal magistrate judge who authorized the search found probable cause that at least three different criminal violations had been committed and that relevant evidence was most likely present at Mar-a-Lago. Who may have committed these offenses is an open question—one best answered by the affidavit the FBI no doubt submitted in support of the search warrant, which thus far remains under seal. But a steady drumbeat of media reports is painting an increasingly damning picture of whoever might have known what exactly was being held at Mar-a-Lago.
For his part, Trump has not taken these allegations sitting down. In a statement issued shortly after the release of the search warrant last Friday, Trump’s office laid out what appears to be his leading legal defense, stating:
The very fact that these documents were present at Mar-a-Lago means they couldn’t have been classified. As we can all relate to, everyone ends up having to bring home their work from time to time. American presidents are no different. President Trump, in order to prepare for work the next day, often took documents including classified documents from the Oval Office to the residence.
[Trump] had a standing order that documents removed from the Oval Office and taken into the residence were deemed to be declassified. The power to classify and declassify documents rests solely with the President of the United States. The idea that some paper-pushing bureaucrat, with classification authority delegated by the president, needs to approve of declassification is absurd.
Trump’s allies have since taken these talking points to various corners of the popular media, along with calls to “Defund the FBI” and pursue other more outlandish responses. Other leading Republicans have criticized the FBI’s actions in more subdued terms, suggesting that the party’s position on the matter may be less unified than it seems at first blush.
No criminal charges have yet been filed against Trump or anyone else in relation to the Mar-a-Lago files. But if and when that happens, Trump’s declassification defense is unlikely to solve his or his associates’ legal problems. While Trump could have declassified whatever he liked while president, his apparent inability to produce any credible evidence that he actually did so is a genuine problem—particularly against the backdrop of an incumbent president who clearly sees the documents as still classified. More importantly, none of the criminal provisions listed in the search warrant hinge on whether the documents recovered at Mar-a-Lago are classified or not, making declassification he might have pursued largely irrelevant. At most, Trump’s declassification defense seems best suited to the political realm as a means of casting the legitimacy, not the legality, of the search into doubt. But even this is less likely to hinge on classification than the degree to which the information that Trump and his staff retained actually put U.S. national security at risk—a factor that remains unknown, but that media reports suggest could be quite serious indeed.
What Did Trump Declassify?
For better or worse, Trump’s account of his declassification authority while president isn’t entirely off base. The classification system that protects most government secrets is, in fact, a product of executive order and thus can be amended by the president. The most recent such order, Executive Order 13526, spells out detailed criteria and procedures for both classification and declassification and doesn’t give the president any direct role in the latter. Nonetheless, other presidents have directed declassification on occasion, as President Biden recently did for certain information relating to the Sept. 11 attacks. A president can also amend the rules and procedures governing declassification as he sees fit. There is thus little reason to doubt that, if Trump had wanted to declassify the documents recovered from Mar-a-Lago while he was president, he almost certainly could have done so.
The more difficult question is whether Trump actually took such a step. There are well-established procedures in place for declassification, none of which Trump appears to have pursued. Nor did Trump take any administrative steps to change or install exceptions to these rules. He also failed to issue any memorandum or executive order directing declassification, as he did in other cases through the very end of his presidency. Indeed, at present, Trump does not appear to have memorialized whatever declassification decision he may have made in any meaningful outside way. His own former national security adviser, John Bolton, has stated, “I was never briefed on any such order, procedure, policy when I came in [or after],” and has described Trump’s assertion that he had a standing order to declassify documents as “almost certainly a lie.”
The closest that Trump and his supporters have come to tying the documents at Mar-a-Lago to an official declassification decision has been to link them to a memorandum declassifying various documents related to the Russiagate scandal that Trump issued on Jan. 19, 2021, just before he left office. But that directive is quite explicit that it applies only to materials within a single “binder of materials” that had been provided to the White House as part of the FBI’s Crossfire Hurricane investigation—not the multiple boxes of classified information removed from Mar-a-Lago, which reportedly cover a much broader range of topics. Former Trump adviser Kash Patel has also argued that Trump pursued a wave of declassifications related to various conspiracy theories in the closing days of his presidency and suggested that these may include the various records held at Mar-a-Lago. But there is no more evidence of these orders than the standing order Trump described in his statement.
The absence of any contemporaneous evidence of a declassification decision is a problem for Trump, whether he and his supporters acknowledge it or not. Trump’s failure to communicate any declassification decision to the rest of the federal government means that it still considers the documents in question to be classified—a fact that it seems to have communicated clearly to Trump and his associates during the months-long negotiations over the return of the documents that preceded the FBI’s search. If the question of classification were ever to become an issue at trial, Trump and his associates would be hard-pressed to rebut the incumbent president’s position without some evidence that Trump took steps to meaningfully declassify the records while president. Even if Trump can show that he gave some characteristic informal or verbal instruction regarding declassification, his own White House has previously disclaimed the idea that such utterances were intended to direct declassification if not followed up on through more conventional procedures, bringing their effect into serious doubt.
If Trump can ultimately produce some compelling evidence that he pursued declassification while president, then he and his associates will be on somewhat more comfortable legal ground. But it may not last, as the question will then turn to whether the Biden administration validly reclassified the same information. If it did—and Trump’s team was informed of this fact over the course of the negotiations leading up to the FBI’s search—then Trump and his associates will find themselves back in more or less the same position they would be in if they had never declassified anything at all.
Another complication for Trump is the fact that the presidentially driven classification system is not the only legal mechanism that guards sensitive government information. Congress has set up separate systems to protect certain types of sensitive information that are independent of the classification system and do not hinge on the president’s determinations in the same way. The Atomic Energy Act, for example, establishes procedures for classifying and declassifying “restricted data” relating to nuclear technology that do not involve the president and imposes criminal penalties on individuals who disclose it. Similarly, Congress has made it a crime to disclose the identities of covert agents, regardless of classification. If either type of information was included in the records at Mar-a-Lago—and recent reports suggest they may be—then Trump and his associates may well have violated these provisions in ways that Trump’s purported declassification cannot possibly remedy.
The only path out of this morass for Trump may be a constitutional Hail Mary rooted in the president’s constitutional authority over sensitive government information. During his presidency, Trump openly embraced a broad view of his own authority in this regard, claiming to have the “absolute right” to declassify information entirely at his discretion, regardless of whatever procedures or legal requirements might otherwise apply. Nor is this view, which now appears to be informing his declassification defense, entirely without basis in the law. The Supreme Court has suggested that “[the President’s] authority to classify and control access to information bearing on national security … flows primarily from th[e] constitutional investment of power in the President [as commander in chief] and exists quite apart from any explicit congressional grant.” And the executive branch has long asserted that the president has some constitutional authority to protect state secrets from disclosure, even to Congress. Both can be read as supporting the idea that the president is constitutionally entitled to a great deal of discretion in how he handles sensitive government information.
Yet to remedy Trump’s legal problems, the president’s constitutional authority over sensitive information would have to be so broad that his determination as to what warrants protection is determinative even when kept entirely to himself and can supersede not only any independent statutory protections installed by Congress but also the contrary views of the incumbent president. No existing authority goes so far as to support this view, which would be tantamount to allowing former presidents to immunize themselves and just about anyone else from criminal violations for mishandling classified information that existed while they were in office. It is almost certainly a bridge too far, even for a relatively friendly Supreme Court. The fact that Trump has implicitly turned to this argument is not a sign of confidence but the last resort of someone without any better options.
Does Classification Even Matter?
All that said, there is an even more fundamental reason why Trump’s claims of declassification are likely to fall short as a legal defense. While there are criminal statutes that hinge on classification, they aren’t among the criminal offenses that the FBI included on the search warrant. To the contrary, all three of the criminal provisions that the FBI did list can be—and two routinely are—applied to misconduct that has absolutely nothing to do with classified information, making it unclear whether Trump’s claims of declassification would make any difference even if true.
The first provision listed, 18 U.S.C. § 1519, is an obstruction of justice provision that makes it a crime to knowingly alter, conceal, destroy, or falsify “any record, document, or tangible object[,]” so long as it’s done with the intent to impede or influence a federal investigation or other process. It’s unclear whether the Justice Department included § 1519 on the search warrant because it believes records held at Mar-a-Lago have been concealed or manipulated in violation of § 1519, or because members of Trump’s team may have generated false records as part of the extended negotiations over the retrieval of those records (such as the inventory that one or more of Trump’s lawyers reportedly signed in June 2022 asserting, incorrectly, that all classified documents had been turned over). Either way, whether the records held at Mar-a-Lago are classified or not is irrelevant, as the Justice Department routinely brings successful § 1519 charges in relation to records that are entirely unclassified, such as police reports and records of maritime waste disposal.
The second provision, 18 U.S.C. § 2071, similarly applies to any effort to willfully and unlawfully conceal, mutilate, or destroy “any record, proceeding, map, book, paper, document, or other thing” that is “filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States[.]” This language has been understood to cover efforts to conceal or destroy just about any sort of public record for well over a century. Consistent with this view, the Justice Department has described § 2071 as “a broad prohibition” covering “acts [that] involve either misappropriation of or damage to public records” without regard to whether they are classified and has successfully brought charges in relation to unclassified records ranging from Selective Service records to military flight logs.
Only the third criminal provision identified in the warrant, 18 U.S.C. § 793, is frequently associated with classified information. Enacted as part of the controversial Espionage Act, § 793 consists of several subsections that might be relevant to the materials recovered from Mar-a-Lago. The two most likely candidates—subsections (d) and (e)—prohibit individuals from unlawfully retaining or providing third parties with “any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation[.]” This universe of protected information is commonly referred to as “national defense information.”
This definition omits any discussion of classified information in part because it predates the modern classification system by several decades. That said, the mainstream view (over some dissent) is that it effectively encompasses most if not all properly classified information, as classification similarly applies to foreign relations and national security-related information that “reasonably could be expected to cause serious damage to the national security” if disclosed. Yet national defense information can include unclassified information as well. The only requirement is that it relate to the “national defense,” which the Supreme Court has described as “a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.”
This does not, however, mean that classification is entirely irrelevant to § 793 prosecutions. To secure a conviction under § 793, a prosecutor must show that a defendant deliberately disclosed or retained information relating to the national defense that they had “reason to believe could be used to the injury of the United States or to the advantage of any foreign nation[.]” This is relatively easy when a defendant knowingly discloses or retains classified information, as the fact that the information is labeled as classified shows that the defendant knew that it relates to national security and that U.S. officials believe its disclosure could harm the United States. In other words, § 793 is easier to apply to the mishandling of classified as opposed to unclassified information because the fact that the mishandled information is classified makes it easier to show the defendant had the requisite knowledge and intent. No doubt this is why most recent prosecutions under § 793 have involved classified information, though some have included charges relating at least in part to nonpublic unclassified national defense information as well.
This context helps to put the limited utility of Trump’s declassification defense into clearer perspective. It can be inferred that whoever was aware of the documents held at Mar-a-Lago knew that they were in possession of documents containing sensitive national security information whose disclosure might injure the United States by virtue of the fact that the documents were still labeled as classified and the FBI had told them that the federal government still considered those labels to be warranted. The fact that Trump may have reached a contrary conclusion and declassified them at some earlier point while president doesn’t render this inference invalid, especially as his views were expressly contradicted by those of the incumbent Biden administration. Even Trump himself would have had “reason to believe” that the information contained in the records at Mar-a-Lago “could be used to the injury of the United States” by virtue of the Biden administration’s stated concerns.
This is especially true in light of what Trump’s own statement says about his purported declassification order. Classified information can generally be declassified either because it is no longer eligible for classification because its disclosure no longer threatens national security or because other public interests favoring disclosure outweigh the need for secrecy. Trump’s justification for declassification—that he wanted to be able to work on the documents containing classified information from home—has absolutely nothing to do with the substance of the information itself and thus can only be understood as a generous application of the public interest standard. Indeed, Trump does not even claim to have even done any sort of assessment of the information before bringing it home, as would be necessary to determine if it were no longer eligible for classification. No one aware of this process—including Trump himself—could reasonably conclude that his declassification had any bearing on the preexisting assessment that disclosure of the information could harm national security, which is what § 793 is ultimately concerned with.
None of this means a criminal case against Trump or his associates is likely to be open and shut. If the Justice Department ever brings charges, their success will hinge on an array of specific facts relating to the underlying documents and how they were handled that are not currently known to the public. But at least under the three provisions that the FBI currently considers to be relevant to the case, the question of whether Trump declassified the documents at issue doesn’t seriously enter into the equation.
In the Court of Public Opinion
In the end, Trump’s declassification defense may ultimately be intended for what has always been his preferred venue: the court of public opinion. Executing a search warrant on the private residence of a former president—particularly one who is a political opponent of the incumbent president—is an inevitably controversial action that can raise genuine concerns about the abuse of power. For many, technical illegality on the part of Trump may not be enough to justify Attorney General Garland’s decision to take such a controversial step. Instead, Garland will need to show that doing otherwise would have resulted in real harm to the country. Revealing classified information is one such harm that members of both political parties traditionally take quite seriously; arguing that no actual classified information was at stake, correctly or not, allows Trump and his supporters to cut any such justification off at the pass.
But in the long run, even this calculus is likely to hinge less on formal classification than other factors. As Jack Goldsmith recently wrote for Lawfare, “Whether Garland made the right call will depend on … how serious the wrongdoing appears to the public independent of legal technicalities.” Goldsmith makes the point that Garland may well lose this debate if the information he chose to pursue proves to be classified but relatively innocuous in substance. But the inverse is also true for Trump: Even valid declassification will not prove to be much of a defense if Trump and his associates are shown to have put meaningful nuclear secrets at risk or compromised the identities of U.S. covert agents.
This may explain why, among the various investigations involving Trump on its docket, this is the first one where the Justice Department has been willing to take direct action against him. A search for classified documents is more likely to result in a smoking gun than more complex investigations, as the individuals being searched will quickly be shown to either have the classified document or not. In this case, the FBI literally found boxes of such smoking guns, with at least five tranches of documents given the highest possible designation of “TOP SECRET.” The sheer volume is staggering, especially given that Trump’s lawyers reportedly gave assurances just weeks earlier that all classified information had been turned over. And while it’s possible that all of the information in these records was innocuous, the odds seem slim.
Given the limitations inherent in discussing classified information, we don’t know when we will learn more about what exactly was in the documents taken from Mar-a-Lago. But media reports are already suggesting that they included serious state secrets. As more information comes forward, Trump is likely to be hard pressed over why he felt such secrets warranted no more protection than a padlock on a basement storage unit, in ways that even some of Trump’s usual defenders may find hard to swallow. Trump’s dubious claims of declassification are at best a distraction from this more fundamental reckoning, just as they are unlikely to prove decisive in any legal proceedings that may yet follow.