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 “purportedly marked as classified” were “once in the White House and unknowingly included among the boxes brought to Mar-a-Lago by the movers” (emphasis added).
If Trump did not know what was in the boxes, he could not have declassified material “even by thinking about it.” Nor could he have instructed anyone to “send it” in any meaningful sense. According to Corcoran, the records with classification markings ended up at Mar-a-Lago entirely by accident.
In June, when Corcoran and Christina Bobb, another Trump lawyer, gave the FBI 38 such documents in response to a federal subpoena, they said nothing about Trump’s supposed declassification of them. On the contrary, the 11th Circuit notes, the envelope containing the records “was double-wrapped in tape, consistent with handling procedures for classified documents.”
Does any of this really matter? “Plaintiff suggests that he may have declassified these documents when he was President,” the appeals court says. “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.”
During a hearing on Tuesday, Trump lawyer James Trusty implied that such evidence exists, but he told Dearie revealing it would be premature. “We are not in a position, nor should we be in a position at this juncture, to fully disclose a substantive defense,” Trusty said. “We shouldn’t have to be in a position to have to disclose declarations and witness statements.” Dearie was not buying it. “My view of it is you can’t have your cake and eat it,” he replied.
In any event, the 11th Circuit says, the current classification status of the disputed documents is not relevant in deciding whether the FBI can use them to build a criminal case against Trump or his underlings. “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,” the unanimous three-judge panel says. “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 appeals court alludes to the puzzle posed by Trump’s removal of more than 300 documents with classification markings, including 184 discovered in the 15 boxes that he surrendered to the National Archives and Records Administration in January, the 38 that his lawyers gave the FBI in June, and the 100 or so that the FBI found at Mar-a-Lago in August. Those documents ranged from “confidential” to “top secret” and included “special compartmented information” about intelligence sources and methods. They also reportedly included information about a foreign nation’s nuclear capabilities.
Such details proved disquieting even to some of Trump’s reliable defenders. “Why did he have all that secret stuff at Mar-a-Lago?” Fox & Friends host Steve Doocy, a longtime Trump ally, wondered on the air last month.
The 11th Circuit judges, two of whom were appointed by Trump, don’t get it either. “Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents,” they say. “Nor has he established that the current administration has waived that requirement for these documents. And even if he had, that, in and of itself, would not explain why Plaintiff has an individual interest in the classified documents.”
That is not the only error that the appeals court identified in Cannon’s reasoning. It says she did not properly apply the rules laid out in Richey v. Smith, a 1975 decision “outlining the standard for entertaining a pre-indictment motion for the return of property under Rule 41(g).” Cannon “concluded that [Trump] did not show that the United States acted in callous disregard of his constitutional rights,” the 11th Circuit notes. “No party contests the district court’s finding in this regard. The absence of this ‘indispensab[le]’ factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.”
The appeals court says Cannon also erred in determining “whether the plaintiff
has an individual interest in and need for the material whose return he seeks.” That is where Trump’s unexplained “need to know the information contained in the classified documents” comes in.
According to the 11th Circuit, Cannon likewise was wrong to conclude that Trump “would be irreparably injured by denial of the return of the property” and that, without her intervention, Trump would have “no legal means of seeking the return of his property for the time being.” Trump “has been clear that he is not seeking the return of the classified documents,” the appeals court notes. “And even if he were, he has not identified any reason that he is entitled to them.”
In short, the 11th Circuit says, “none of the Richey factors favor exercising equitable jurisdiction over this case. Consequently, the United States is substantially likely to succeed in showing that the district court abused its discretion in exercising jurisdiction over Plaintiff’s motion as it concerns the classified documents.”
When Cannon considered whether the government would “suffer irreparable injury in the absence of a stay,” she rejected the argument that restricting the FBI’s use of the classified records would endanger national security. Preventing the FBI from using the records in its criminal investigation posed no such risk, she thought, because she was allowing the government to continue its assessment of how keeping the documents at Mar-a-Lago may have compromised intelligence sources or methods.
“This distinction is untenable,” the 11th Circuit says. “The United States has sufficiently explained how and why its national-security review is inextricably intertwined with its criminal investigation.” The same FBI and Justice Department officials are responsible for both overseeing the criminal investigation and for coordinating the intelligence review with other agencies, and those two functions interact.
For example, the appeals court says, “if an Intelligence agency were to obtain intelligence indicating that a classified document in the seized materials might have been compromised, the FBI would be responsible for taking some of the necessary steps to evaluate that risk.” Furthermore, such a discovery would unavoidably “inform the FBI’s criminal investigation.”
That investigation, like the question of whether a stay should have been issued, does not hinge on whether anyone believes Trump’s claims about declassifying records through “a standing order,” by “thinking about it,” or merely by deciding to take the documents with him to Mar-a-Lago. The FBI cited three potential crimes in its search warrant, and none of them depends on the classification status of those documents.
18 USC 793(e) makes it a felony, punishable by up to 10 years in prison, to “willfully” retain “defense information” that the defendant “has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” 18 USC 2071 makes it a felony, punishable by up to three years in prison, to “willfully” conceal, remove, or destroy a U.S. government document, classified or not. 18 USC 1519 makes it a felony, punishable by up to 20 years in prison, to conceal “any record, document, or tangible object” with the intent to “impede, obstruct, or influence” a federal investigation.
If the Justice Department ultimately decides to prosecute Trump for any of those offenses, it may have trouble establishing the requisite intent, since his behavior can plausibly be attributed to some combination of ignorance, arrogance, laziness, and sloppiness. But to obtain convictions, prosecutors would not have to refute Trump’s assertion that the classification status of any given document is contingent on his fleeting thoughts or acquisitive impulses.
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