The development comes as his legal team resists disclosure of declassification details.
The development comes as his legal team resists disclosure of declassification details.
F ormer president Donald Trump has acknowledged that he could be indicted for mishandling classified information. The concession came in a letter his counsel submitted Monday evening to Judge Raymond Dearie, the special master appointed to conduct a privilege review of documents seized by the FBI from Trump’s Mar-a-Lago estate.
Trump has been cornered into admitting his criminal exposure because of an issue he has gratuitously raised: the claim that he declassified the documents bearing classification markings that he retained at Mar-a-Lago. Dearie, a senior federal judge in Brooklyn who was appointed last Thursday by Florida federal judge Aileen Cannon, has directed Trump to provide details.
Publicly, Trump has insisted that he declassified the documents. Yet he did not provide an affidavit to that effect in the lawsuit he filed seeking the special master. Clearly concerned about being accused of misleading the court, Trump’s lawyers have taken pains not to make a positive claim of declassification. Nevertheless, they have intimated that the documents may not be classified.
This tap dance was enough for Judge Cannon, a Trump appointee, to surmise that there is a factual dispute. This was hard to fathom given that (a) the documents are incontestably marked classified; (b) there is no actual evidence in the case suggesting that they are no longer classified; and (c) as the plaintiff who chose to file the civil lawsuit, it was Trump’s burden to prove facts relevant to his privilege claims.
The Justice Department contends that the classified intelligence documents are government records to which Trump has no viable claim of executive privilege. The government has objected to the inclusion of the classified documents in the special master’s privilege review, and it has appealed that aspect of Judge Cannon’s rulings to the Eleventh Circuit Court of Appeals. (The Eleventh Circuit has directed Trump’s counsel to respond by noon today to the Justice Department’s Friday night submission — which I discussed here.)
Obviously anxious to get to the bottom of the matter expeditiously, Judge Dearie (who is meeting with lawyers for both sides in Brooklyn today) directed Trump’s counsel to disclose the basis for his declassification claim.
In their letter to Dearie, Trump’s lawyers responded:
We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order. [Emphasis added.]
Obviously, Trump’s counsel anticipate that he could be charged under the Espionage Act with illegally retaining, negligently storing in a non-secure location, and possibly misplacing national-defense secrets. Indeed, Magistrate Judge Bruce Reinhart, who issued the Mar-a-Lago search warrant on August 5, found probable cause of Espionage Act crimes.
Consequently, Trump’s lawyers do not want to front the details of his defense he is likely to assert if he is charged — namely, the claim that the documents are not, in fact, classified because he declassified them at some point.
This is problematic for Trump for at least three reasons. First, nobody forced him to file a lawsuit seeking a special master; having chosen to do so, it is his burden to establish facts relevant to his (highly dubious) privilege claims. Second, to prove an Espionage Act offense, the government need not establish that the documents were classified, just that they are national-defense information. (The fact that they were classified would, however, be highly probative evidence that they contained national-defense information.) Third, from a political standpoint, it would be an enormous scandal if Trump formally claims to have carried out an indiscriminate, en masse declassification of hundreds of pages of top-secret information — information the mishandling of which may have placed informants’ lives at risk and blown critical intelligence-collection operations — in a self-absorbed and ill-considered effort to insulate himself from criminal liability.
To try to resist getting into the declassification issue at this point, Trump’s lawyers are arguing that the only issue before the special master is whether documents are privileged. Declassification, Trump contends, is relevant only to the separate question of whether the classified documents should be returned to Trump because they are his personal property. That question, they say, is premature because he has not made a formal motion for return of property.
This argument is unlikely to fly. Trump’s public claims to have declassified the documents are plainly intended to cast doubt on the prosecutors’ insistence that the documents are government property and involve intelligence reports that could not be plausibly covered by executive or attorney-client privilege. Trump has made privilege claims regarding the documents bearing classification markings, and when the government sought to exclude those documents from the privilege review, he objected — hence the government’s above-mentioned appeal to the Eleventh Circuit. A party does not get to put factual questions in dispute and then decline to supply the court with the relevant facts.
Trump might have a point if the government had charged him with a crime — though even then, he’d have to provide some evidence to back up any claim that he’d declassified documents. But he hasn’t been indicted at this point; again, the matter before Cannon is Trump’s own lawsuit, and Dearie is the special master Trump asked for. Moreover, in the litigation before Cannon, Trump claimed that the seizures included his personal property, which he could seek to have returned. Cannon (untenably) relied on that claim in concluding that Trump had standing. Surely it will be news to Cannon, and to the Eleventh Circuit, that Trump is now saying the questions about whether he is entitled to a return of property are not before the court at this time.
For now, Trump could probably avoid the declassification issue by agreeing with the Justice Department that the classified documents should not be part of the special master’s privilege review. That, obviously, would embarrass Judge Cannon who ruled Trump’s way at the risk of being rebuked by the Eleventh Circuit. But if he does not retreat on privilege in connection with the classified documents, Judge Dearie is going to make Trump put his cards on the table.
In all, there are over 300 classified documents that were in Trump’s possession at Mar-a-Lago. About 184 were found in 15 boxes of materials he provided to the National Archives and Records Administration in January 2022 (after months of requests by NARA). On June 3, two of his attorneys, Christina Bobb and M. Evan Corcoran, surrendered 38 documents marked classified pursuant to a grand-jury subpoena — simultaneously representing that a “diligent search” had been conducted and that these 38 documents were the only ones with classification markings remaining on the premises. Approximately 100 more were found nearly two months later, when the FBI executed the search warrant.
Only the documents seized in the August 8 search are part of the special master’s privilege review. All of the documents marked classified are part of the government’s criminal investigation, in which the Justice Department is also exploring the possibility that additional classified documents remain in Trump’s possession, or have been lost.