Trump claims the confidential documents the FBI confiscated from his Mar-a-Lago estate were verbally declassified by him. So long as he can back up his claim with evidence, it’s not as novel or far-fetched as it might first appear.
When Cheney’s chief of staff, Scooter Libby, leaked the key findings of a highly classified intelligence community-wide report on Iraq’s efforts to acquire weapons of mass destruction to select journalists nearly 20 years ago, prosecutors at the Justice Department grappled with the difficult question of whether Bush and Cheney could act unilaterally to authorize such a leak.
Special Counsel Patrick Fitzgerald may have decided not to charge Libby with leaking classified information to New York Times reporter Judith Miller and others because of Libby’s claim of a direct but unrecorded disclosure order from Bush and Cheney.
Fitzgerald was appointed to examine if someone in the Bush White House or elsewhere in government disclosed the identity of CIA operative Valerie Plame to the media, but instead, in 2005 he brought perjury and obstruction of justice charges against Libby.
For the first time in recent memory, the topic of unilateral presidential declassification surfaced in the Libby case, according to Steven Aftergood, a notable specialist on classified information policy. It was a one-time authorization for that person to share that information with that other person… It draws attention to the reality that the president claims, or actually does, defy categorization.
Trump’s declassification of information without a clear paper trail is a source of contention, and the Libby case is not a perfect analog, but it does illustrate that prosecutors in the past have shown some nuance in their approach.
Trump has a number of legal problems, including the fact that he is no longer president and was in physical possession of apparently critical national security information. Additionally, similar to the Libby case, Trump might face charges unrelated to sensitive material. The experience after the 2003 war of Iraq, however, shows how challenging it may be to prosecute instances involving classified material that involve the White House directly.
“The problem was and remains ambiguous,” Aftergood, a former analyst with the Federation of American Scientists, said.
The government must normally prove that the information was properly classified at the time of the breach or leak, or that it was “closely held” under some regime for regulating exposure, in order to win a criminal case involving a breach or leak of national security information.
Ironically, if Trump were to be charged under one of these statutes, he could point to his own careless handling of national security secrets as proof that the material wasn’t “closely kept” even before it made its way to Mar-a-Lago.
Many of Trump’s closest advisors believed that he was too careless with classified information, frequently revealing details in an effort to impress or show off to others. Concerns about counterintelligence dangers posed by Trump’s handling of sensitive material were focused on Mar-a-Lago well before he left the government last year.
Perhaps most worryingly, when he visited the Russian foreign minister and ambassador in the Oval Office in 2017, he shared highly sensitive material he had obtained from an ally, an Israeli source. And he didn’t blink an eye when Chinese President Xi Jinping was sitting at the table next to him at dinner at Mar-a-Lago and he ordered a missile strike on Syria from the patio.
Additionally, Trump repeatedly requested that his staff deliver him one of the letters sent to him by North Korea’s Kim Jong Un, which he referred to as “love letters,” in an effort to show off to reporters and guests, as reported by those familiar with the conversations. Several times, he let his guests look through the letters before grabbing them back, seemingly delighted by the daring of such a covert communication.
The Washington Post reports that the letters were among those discovered at Mar-a-Lago after his administration turned them over to the National Archives in the lengthy back-and-forth preceding the raid there last week.
Some analysts have speculated that any charges that arise from the FBI raid may end up being more comparable to theft than a breach of national security due to the lack of clarity surrounding how presidents can declassify information and whether that has to be legally documented to be successful.
According to Tom Blanton of the National Security Archive, “the classification issue may not be where prosecutors are going.” “This may be more about taking and keeping than about mishandling secret information,” the official said.
According to Blanton, a controversy over archiving rules is less likely to garner notice than a reference to national security secrets.
“Classified knowledge is the clincher,” he stated politically. The part of this that is classified is being used as political messaging.
Trump’s rambling statements during his presidency raised eyebrows because they seemed to pave the way toward the declassification of top-secret programs, but each time the courts or administration officials stepped in to close the door.
Even though Trump seemed to acknowledge the program on Twitter and in offhand comments in 2018, a judge rejected an effort by news organizations to release documents related to a CIA program to support Syrian rebels. Mark Meadows, Trump’s chief of staff, similarly told a court that Trump’s October 2020 tweet about the declassification of huge amounts of material relating to Russia was not meant to be a “self-executing” declassification order.
A possible spy satellite image of an Iranian rocket that had exploded on the launch pad was shared by President Trump in August 2019.
Trump’s stance on his declassification powers was aggressive when he was questioned by reporters.
It was the president’s prerogative to disclose the photo, and he did so.
Legal efforts to make public more details about the operations covered by the Foreign Intelligence Surveillance Act have been complicated by Trump’s pronouncements on declassifying materials linked to those activities.
It’s not just Trump who has made comments while in office that have unmasked secret national security operations. In a 2014 online video conference, President Obama seemed to confirm the existence of a program of drone strikes in Pakistan, which had not been openly recognized by intelligence or defense officials prior to Obama’s description of the operation.
The Justice Department has frequently argued, in response to private litigants seeking to use such comments to prompt additional disclosures, that casual comments, accidental statements, or even — in Trump’s case — explicit statements about declassification did not amount to the formal action needed to declassify information that the national security state considers “secret” or “top secret.”
Even yet, there appears to be some discord between the positions adopted by Justice Department prosecutors in criminal cases and those taken by DOJ lawyers in civil litigation, such as Freedom of Information Act complaints.
To give just one example, the Justice Department did not press criminal contempt charges against Meadows for ignoring a subpoena from a House select committee on January 6, but it did rule against Meadows in a civil complaint in which he claimed executive privilege as a basis for his refusal to testify.
The Department of Justice (DOJ) has not yet explained the distinction it drew, but prosecutors typically avoid gray-area cases in which 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.
Last week, Trump made an unsubstantiated assertion that “all declassified” documents had been found when the FBI raided Mar-a-Lago. His administration made a brash statement claiming he had been given “a standing order,” declaring that any papers he brought home would be “deemed to be declassified.”
Kash Patel, a former adviser to now-retired California Republican congressman Devin Nunes, has also spoken in favor of Trump’s assertions. Patel has worked as a member of the National Security Council staff in the White House and as interim chief of staff at the Pentagon.
Patel has claimed that the FBI and DOJ investigation into ties between the Trump campaign and Russia in 2016 is tied to materials taken from Mar-a-Lago. On Friday, Patel released a statement saying these files were among those Trump declassified in his final days in office. He claims Trump had the authority to unilaterally declassify any information and claims the president has done so through both oral and written directives.
In a podcast published on Sunday, Patel, whom Trump designated on June 19 as one of his official representatives to the National Archives, claimed that Trump tried to make some of those Russia-related documents public at the end of his presidency but that many ended up in the custody of the Archives instead. Patel then described how he had dealt with the Archives in an effort to track down the relevant documents.
My security clearance is still active, as I stated. If it’s a matter of categorization, I’ll drop by to have a look. The release of these papers seems to be delayed inexplicably. This, according to Patel. Why isn’t the public in the United States allowed to read the declassified papers? To top it all off, I did not receive a satisfactory response. Another round of bureaucratic red tape is all I received.
According to Patel, a representative from the Archives told him that the agency had some of the papers but couldn’t locate all of them and that some were returned to the Justice Department.
One former Department of Justice national security official said that Trump’s purported pursuit of a last-ditch declassification effort before leaving office would put the department’s customary deference to presidential prerogatives to the test.
A law professor at George Washington University Kathleen Kedian stated, “I think it’s crucial to understand that such authority ultimately flows from Article II’s position of the President as Commander in Chief — with the responsibility to safeguard the national security of the United States.” It is not clear how the declassification and removal of these documents to an unsafe place is consistent with that Article II authority, based on the information now available to the public.
Experts suggest that the Justice Department’s decisions on how to handle cases involving classified information are influenced more by norms, rules, and historical practices than by the plain text of the statutes at play.
There are many people both inside and outside of government who may be prosecuted under criminal law, but this is rarely done because of the risk of unfavorable court verdicts.
Prosecutors could still bring charges for things like unlawfully retaining regular government papers, even if they decide not to prosecute Trump or anybody else with a crime related to classified material.
However, even in these cases, the Justice Department typically uses non-criminal means (such as negotiation or other ways) rather than criminal charges. In early March, a legal suit was filed in an effort to gain access to the emails at issue in the controversy surrounding Trump adviser Peter Navarro’s use of private email.
But prosecutors might not be able to resolve such issues in a conventional way due to the scope of the records Trump obtained and the expansive, aggressive tenor of his claims about his declassification authority.
“The Trump case is absolutely breaking ground, and he is not making it easy for this to go away,” Aftergood said. He has failed repeatedly. The government might be willing to give an ex-president a pass, but he isn’t making it easy for them.