The FBI Regains Access to Mar-a-Lago Documents That Trump Claims He Mentally Declassified
A federal appeals court yesterday restored the FBI’s access to more than 100 documents with classification markings that it found last month when it searched Mar-a-Lago, former President Donald Trump’s residence and private club in Palm Beach, Florida. U.S. District Judge Raymond Dearie, the special master appointed by U.S. District Judge Aileen Cannon, will continue reviewing the rest of the 11,000 or so documents that the FBI seized, looking for any that may qualify as personal property, attorney-client communications, or material covered by executive privilege. But thanks to the partial stay issued by the U.S. Court of Appeals for the 11th Circuit, the FBI can use the small subset of documents marked as classified to assess not only whether keeping them at Mar-a-Lago damaged national security but also whether Trump or his representatives violated federal law by doing so.
The 11th Circuit’s 29-page decision unambiguously rejects the reasoning that Cannon applied when she prohibited the government from reviewing the documents marked as classified “for criminal investigative purposes” and when she refused to issue a stay lifting that part of her order. The appeals court’s ruling also highlights the dubiousness and legal irrelevance of Trump’s claim that he declassified those records before transporting them from the White House to Mar-a-Lago in January 2021.
Trump elaborated on that claim during an interview with Sean Hannity on Fox News last night (emphasis added). “I did declassify,” he said. “There doesn’t have to be a process, as I understand it….If you’re the president of the United States, you can declassify just by saying ‘it’s declassified’ [or] even by thinking about it, because you’re sending it to Mar-a-Lago or wherever they’re sending it, and there doesn’t have to be a process. There can be a process, but there doesn’t have to be. You’re the president; you make that decision. So when you say ‘send it,’ it’s declassified.”
That account is hard to reconcile with what Trump said four days after the FBI’s search. At that point, Trump claimed he had “a standing order” as president that automatically declassified any records he took from the Oval Office to study at his residence in the White House. That policy was news to national security officials who should have known about it, and it would have been a very cavalier way to handle sensitive government records.
Declassification decisions are supposed to be based on a careful judgment that allowing unrestricted access to a particular document would not jeopardize national security. But by Trump’s account, he declassified anything he happened to remove from the Oval Office. Furthermore, it seems he did not bother to inform anyone of those specific decisions so that people would know how the records should be handled and could update the markings on them accordingly.
Despite those obvious drawbacks, Trump’s initial explanation at least involved an “order,” meaning he at some point announced this purported policy. His comments on Fox News suggest he did not even bother to do that.
Trump said the president can declassify documents “even by thinking about it,” meaning the decision does not have to be communicated to anyone, even though the whole point is to change how records are stored and handled. In fact, according to Trump, he did not even have to mentally declassify records. “When you say ‘send it,'” Trump asserted, “it’s declassified.” In other words, anything he brought to Mar-a-Lago was declassified by definition, even if Trump never told anyone that or even thought about it.
That version of Trump’s defense is also inconsistent with what Trump lawyer Evan Corcoran said in a May 25 letter to Jay Bratt, chief of the Counterintelligence and Export Control Section in the Justice Department’s National Security Division. Corcoran told Bratt that documents “purport
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