After some initial success, former President Trump’s claims he declassified the records found in his Mar-a-Lago home are beginning to hit roadblocks in court.
Authorities have recovered some 300 classified documents from Trump’s Florida home over the course of this year, including 100 seized during the August search.
Trump doubled down on his claim he declassified the records in the Wednesday night interview with Fox News’s Sean Hannity.
“I did declassify,” he said. “If you’re the president of the United States, you can declassify just by saying, ‘It’s declassified.’ Even by thinking about it.”
He also implied there would be no evidence of such a decision, even though a presidential declassification triggers a number of actions from various intelligence agencies.
“There can be a process, but there doesn’t have to be. You’re the president. You make that decision. So when you send it, it’s declassified,” Trump added.
In court however – where Trump’s lawyers have insinuated he may have declassified the documents but stopped short of fully making the assertion – judges this week pushed back.
A Florida judge initially looked more positively to that argument and others, awarding Trump’s request for a special master, but subsequent judges haven’t responded as favorably.
Trump’s legal team resisted a request from Judge Raymond Dearie, the candidate they forwarded to be special master who is now serving in the role, to elaborate on a filing noting that Trump could have declassified the records. Their failure to do so seemed to irk the judge when both parties met with Dearie on Tuesday.
And an appeals court on Wednesday ruled in favor of the Justice Department, striking down a lower court’s denial of their request to exempt the classified records from the special master process.
Trump’s declassification claims featured in the ruling.
“Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents,” a three-judge panel that included two Trump appointees ruled for the 11th Circuit Court of Appeals.
Declassification would not excuse the crimes listed on the warrant to search Trump’s home. The Espionage Act deals only with “national defense information” while another deals with concealing government records.
The court also questioned why the Trump team was making the claim, noting that regardless, he has no reason to claim declassified records are his personal property.
“In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them,” the judges wrote.
“For our part, we cannot discern why plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.”
The tranche of documents found at Trump’s home include some of the nation’s most closely guarded secrets, including those that can only be accessed by those with a “need to know.”
“This requirement pertains equally to former presidents, unless the current administration, in its discretion, chooses to waive that requirement,” the court wrote.
In their first conference with Dearie, the special master, the Trump team balked at a request to explain the declassification claim, arguing they should only have to do so if criminal charges are filed and they file a Rule 41(g) that allows for recovery of seized property.
James Trusty, an attorney for Trump, said they were “not in a position” to explain further.
“We have the concerns that we’ve already talked about basically about declassification defense and when and how that should be borne out if it’s going to be, meaning, that we shouldn’t be
in a position to have to disclose declarations, witness statements, whatever it might be, to substantiate that until a Rule 41(g) is filed,” Trusty said.
“Well, you did bring the lawsuit and make that claim,” Dearie responded.
“What we’ve done is we’ve raised the issue. We have not been in a position, nor should we be at this juncture, to fully disclose a substantive defense relating to declassification until we see the documents,” Trusty said.
But Dearie did not appear satisfied by that answer, adding later, “You can’t have your cake and eat it.”
Whether or not Trump declassified the documents is no longer at issue in the special master review — the 11th Circuit granted DOJ’s request to exempt the classified records from the review so it could continue its national security and criminal investigation connected to the documents.
But another one of Trump’s claims has also been pulled into the special master’s review.
In a plan for reviewing the more than 10,000 documents taken as the property, Dearie asked Trump’s team to account for the former president’s claims that the FBI may have “planted” evidence.
Trump made the insinuation just two days after his home was searched.
“Everyone was asked to leave the premises, they wanted to be alone,” he wrote in a post on his social media platform, “without any witnesses to see what they were doing, taking or, hopefully not, ‘planting.’”
Trump again made the assertion during his Fox interview this week.
“The problem that you have is they go into rooms — they won’t let anybody near — they wouldn’t even let them in the same building. Did they drop anything on those piles? Or did they do it later?” he said.
Dearie’s plan asks Trump’s team for a declaration with “a list of any specific items set forth in the [FBI’s] detailed property inventory that plaintiff asserts were not seized from the premises.”