Former President Donald Trump’s recent response to the investigation that led to the FBI’s execution of a search warrant at his Mar-a-Lago home is that he “declassified” the documents that were seized by the FBI. Hopefully, for his sake, he isn’t banking on this defense to protect him from any potential charges, because it’s largely legally irrelevant.
Even if he scribbled something down with a sharpie on a post-it note, this is simply not how the declassification process works.
Since a federal magistrate judge granted the search warrant that allowed the FBI to carry out the search and seize documents from Trump’s residence, that judge had probable cause to conclude that there was evidence of crimes at Mar-a-Lago. Because the search warrant was unsealed late last week, we now know which specific crimes the Justice Department is looking into with respect to the documents sought at Mar-a-Lago.
The DOJ listed three federal criminal statutes on the search warrant. These statutes include the Espionage Act and prohibitions against the obstruction of justice and the unlawful taking or destroying of government documents. These are serious charges; if convicted, Trump could face decades behind bars.
There are two big things to know here. First, there is no evidence that Trump actually went through the proper process of declassifying the documents at issue. Second, even if he did, that is unlikely to make any difference.
When Trump was president, he had broad power to declassify government information. Trump has claimed he had a “standing order” that materials taken from the Oval Office to the residence should be considered declassified. No need to hold your breath for proof; even if he scribbled something down with a sharpie on a post-it note, this is simply not how the declassification process works.
Typically, a president who wants to declassify information complies with both an executive order on the topic and other federal regulations. This process is generally originated with the department that classified the information and offers a period of notice for interested people and departments to be consulted on the potential declassification. The idea that the president could, in his head, declassify information makes no sense. The whole point of classification is that government officials know to limit access to certain documents. And although it shouldn’t even need to be stated, Trump has as much power to declassify documents now that he is out of office as he does to declare Mar-a-Lago a separate country.
Imagine, however, that Trump did properly declassify all the documents the FBI found and took from Mar-a-Lago. The likely legal response would be — so what? Conviction under any of the three crimes listed in the search warrant does not depend on whether the evidence found is classified.
The idea that the president could, in his head, declassify information makes no sense.
To start, the Espionage Act, which was enacted in 1917, well before our current system of classifying and declassifying documents, law prohibits much more activity than just, well, espionage. It prohibits the gathering, retaining, or transmitting of national defense information. This information can be classified, and often will be, but the plain language of the statute does not require that it is.
Next up, the federal law relating to the obstruction of justice, among other things, bars the destruction, alteration, or falsification of documents involved in federal investigations. Let’s imagine that you have a box of documents related to your work as an accountant. You are in lawful possession of these documents. But you become aware that those documents are part of a federal investigation and then hide or destroy the documents. Even though you have the right to possess those documents in the first place, once it becomes clear that they are part of a federal investigation, you no longer have the right to withhold or destroy them. This is why it likely makes little difference whether Trump had declassified the documents obtained in the search of Mar-a-Lago. Because even if he had, he could still obstruct justice by holding on to the documents after law enforcement asked for them to be turned over.
The last federal law at issue involves the concealment, removal, or mutilation of government documents. It specifically bars people from “willfully and unlawfully” concealing, removing, mutilating, obliterating, or destroying certain government documents. This applies to government records, whether or not they are classified.
Trump’s chances of facing potential indictment on charges related to the Espionage Act, obstruction of justice, or the unlawful taking of government documents seem to grow the more we learn about the DOJ’s investigation. If his primary defense is that he declassified the documents, then his chances of facing conviction are growing as well.