For weeks, former President Donald Trump has been raving on social media that he couldn’t possibly have mishandled Top Secret records because he’d already declassified them. Now those arguments are finally starting to make their way into his Mar-a-Lago case.
On Monday morning, Trump’s legal team filed court documents asserting that Trump had unfettered power while he was at the White House to declassify these sensitive national security records—pointing to an executive order from President Barack Obama that gave the president alone the ability to make that decision.
“The President enjoys absolute authority under the Executive Order to declassify any information,” attorneys wrote. “There is no legitimate contention that the Chief Executive’s declassification of documents requires approval of bureaucratic components of the executive branch.”
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But Trump’s lawyers notably stopped short of arguing that the former president actually did declassify the documents—or describe how that allegedly happened. It’s a bit of legal sleight of hand, seeming to offer the argument that Trump declassified documents without actually arguing that point.
As legal scholars closely monitoring this case have pointed out, lawyers putting that in writing could force them to back that up with proof that Trump actually took appropriate steps as president to make that happen.
And so far, there’s no sign he did that.
Ever since a team of FBI special agents raided Trump’s oceanfront estate in Palm Beach, Florida in search of classified records he should not have kept there, MAGA allies have defended the former president on the grounds that any records in his possession were fine for him to have anyway. Kash Patel, a lawyer who made his way up the ranks at military and spy offices during the Trump administration, put it simply when he told Fox News last month that the president “can literally stand over a set of documents and say, ‘These are now declassified.’”
However, in reality, a president’s formal decision to declassify a particular set of national security documents is actually just the first step in a bureaucratic process. The government agency that initially marked a record as “confidential,” “secret,” or “top secret” has to go back and relabel that record. And the assertion that Trump simply waved his hand and made it so has been hotly debated by national security lawyers.
Still, Trump keeps claiming he did just that on his own branded social media network, Truth Social.
“Lucky I Declassified!” Trump posted last week.
On Monday, Trump’s lawyers raised this argument in a court filing supporting U.S. District Judge Aileen Cannon’s recent decision to halt the FBI investigation and have a so-called “special master” oversee the review of documents marked classified. However, the court filing narrowly avoids saying how and when Trump supposedly declassified these records. Instead, it just asserts the general idea that a president has that power, something that few would argue against.
“The Government does not contest—indeed, it concedes—that the President has broad authority governing classification of, and access to, classified documents,” his lawyers wrote.
The move could be seen as a ploy to get federal prosecutors in the impossible position of having to prove a negative, essentially saying: You can’t demonstrate that Trump didn’t declassify these records.
Or it could just be a ploy to appease Trump, to show the former president that his lawyers are advancing arguments that he declassified the documents even when his lawyers are actually avoiding those arguments.
