Tuesday, October 4, 2022
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Trump claims he declassified documents, but his lawyers don’t

WASHINGTON — Former President Donald J. Trump said Wednesday that when he was in the White House, his powers were so broad that he could declassify virtually any document just by “thinking about it.”

That argument, which emerged when he defended his decision to withhold government documents at his Florida home in an interview with Fox host Sean Hannity, underscored a widening rift between the former president and his lawyers. To the contrary, they have so far been unwilling to repeat Trump’s declassification claim in court as they counter a federal investigation into his handling of government documents.

Over the past week, a federal appeals court in Atlanta, coupled with Trump’s choice of a special master to review documents seized last month, undermined a stronghold of his effort to justify his actions: Both suggested there was no evidence to support the claim that Mr. Trump had declassified everything, in writing, verbally or without words, despite what the former president may have said on television.

On Thursday, the special master, Judge Raymond J. Dearie, also seemed to point to another of Trump’s excuses: that federal agents had planted some of the records when they searched his property in Mar-a-Lago. In an order issued after the appeals court ruling, Judge Dearie instructed Trump’s attorneys to tell him if there were any discrepancies between the documents kept at Mar-a-Lago and those the FBI said were kept. had carried.

By the time Hannity’s interview aired Wednesday night, a three-judge appeals panel of the 11th Circuit Court of Appeals — which included two Trump-appointed jurists — had blocked part of a favorable lower court order. to the former president. The panel dismissed the suggestion that he had declassified 100 highly sensitive documents found in his residential and storage areas as baseless and irrelevant.

the court wrote that there was “no evidence that any of these records have been declassified” and took note of the fact that, when Trump’s lawyers appeared before Judge Dearie this week, they too “resisted in providing evidence that he had declassified any of these documents. ”

The appeals panel went on to state that the issue of declassification, which Trump has repeatedly put at the center of the case, was “a red herring” that would not have factored into their decision even if it had been discussed at length before them. Even if Trump had declassified the records, the justices wrote, he was still bound by federal law, including the Presidential Records Act, which required him to return all government documents, classified or not, when he left office.

Declassification of an official document would not by itself “make it personal” or make it a possession he could keep after leaving office, the court said.

The Atlanta judges were not alone in their opinion.

A day earlier, Judge Dearie expressed a similar form of skepticism. He pointedly told Trump’s legal team that since the classified documents were clearly marked classified, he intended to treat them as classified unless they offered evidence to the contrary.

Wednesday’s ruling was a major victory for the Justice Department, which argued that the earlier decision by Judge Aileen M. Cannon, whom Trump appointed to the U.S. District Court for the Southern District of Florida, had stymied its investigation and hampered the work of the intelligence community. ability to conduct a separate intelligence assessment.

On Thursday, Judge Cannon modified your order for the special master review to exclude documents marked as classified, according to the decision of the appellate court.

However, the order seemed to raise new questions. Judge Cannon did not issue a written opinion explaining why she had taken that step before Trump indicated whether she would appeal to the Supreme Court. any other litigation on the disputed matter. Trump’s lawyers did not respond to requests for comment.

Shortly after Judge Cannon’s order was issued, Judge Dearie issued his own scheduling order for review that will now focus only on the approximately 11,000 documents that are not marked as classified.

Under his plan, the two sides would identify any disputes over whether the records are government or personal property, or privileged or unprivileged, by Oct. 1. twenty-one

After Judge Cannon rules on the disputed files, Judge Dearie said, he will consider a motion, should Trump wish to file one, to retrieve the seized items. Judge Dearie also said that he would not seek compensation since he is still actively hearing cases, but that he would hire a retired magistrate judge from the Eastern District of New York, James Orenstein, to help him at a rate of $500 an hour.

Trump will still have to foot the bill, as specified in an earlier ruling by Judge Cannon.

It remains possible for Trump’s lawyers to appeal the matter to the Supreme Court, hoping that the court’s conservative majority will formulate a broad new definition of presidential authority that the administration says is at odds with precedent and judicial regulations. But lawyers could also pursue a more limited strategy, seeking to delay the investigation in hopes of shielding Trump from legal liability, rather than trying to leave a more lasting constitutional mark.

During the hearing before Judge Dearie, Trump’s lawyers gave a glimpse of what the declassification strategy might actually be. It appears to be a strategy the former president’s legal team has in reserve in case he ultimately challenges the legality of the Mar-a-Lago search in a suppression motion or files court papers, known as a Rule 41 motion, to obtain some of the materials seized back from the Department of Justice.

James Trusty, one of Trump’s lawyers, hinted at what he and his associates have been planning, telling Judge Dearie they might offer evidence at some point that Trump declassified the documents. But to do so, Trusty said, the legal team first needed to see the classified material.

While Judge Dearie welcomed the idea that Trump’s lawyers might one day prove his claims, he seemed less pleased to hear them make arguments but not provide evidence.

“I guess my point of view is,” he said, “you can’t have your cake and eat it.”

The idea of ​​a magic wand process by which a president can wield power and fulfill his legal responsibility has broad appeal to Trump, according to people close to him. And while many legal experts have dismissed such a broad definition of presidential power, several of the former president’s key allies, including former White House adviser Kash Patel; journalist John Solomon; and Tom Fitton, who runs Judicial Watch, a conservative legal group, urged him to adopt that defense.

Trump’s legal team has merely hinted at the possibility that he may have declassified the documents, without taking a strong stand in court, where making a false statement can have professional consequences.

In a letter to the Justice Department in May, Trump’s legal team first offered a coy suggestion that Trump might have declassified everything, stopping short of saying he did. At the time, Trump had just received a grand jury subpoena for any sensitive records left at Mar-a-Lago, and the letter argued that Trump could not be charged under a law that criminalizes the mishandling of classified information.

Even then, there were signs that the classification debate, though high on the former president’s mind, was of limited use to his lawyers.

No credible evidence has surfaced to back up Trump’s claims, but even if they turn out to be true, legal experts say that wouldn’t get him out of legal trouble.

When the Justice Department later obtained a search warrant for Mar-a-Lago, it listed as the basis of the investigation three other laws for which prosecutors do not need to prove that a document was classified as an element of the crime. They include the Law of Espionage and Obstruction.

Trump has continued to insist in public that he had declassified everything the government seized from his residence.

However, if the former president is serious about using that claim as the cornerstone of his defense, he will ultimately have to risk backing up those claims in court, under oath.

Trump’s lawyers could also file affidavits, though it’s unclear if they’d be willing to do so; Federal investigators are currently examining whether members of his legal team falsely testified that they had returned confidential materials to the government before the search warrant uncovered dozens of documents.

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