Former President Donald Trump’s response to the federal raid on his Mar-a-Lago home this week ricocheted from conspiracy to whataboutism: First, he suggested the FBI could have planted the top-secret material it found at his South Florida residence. Then he shifted focus to his predecessor, Barack Obama, whom he said had done the same thing, only worse ― a claim the National Archives was moved to debunk on Friday.
Trump now appears to have landed on an old standby, claiming victimhood because he supposedly didn’t do anything wrong to begin with. He had already declassified everything that had been taken to Mar-a-Lago, Trump argued on Truth Social, the platform he founded after being kicked off Twitter.
On Friday evening, Trump’s camp sent a statement to Fox News elaborating on that defense.
“As we can all relate to, everyone ends up having to bring home their work from time to time. American presidents are no different,” the statement read.
It continued: “President Trump, in order to prepare for work the next day, often took documents, including classified documents, to the residence. He had a standing order that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.”
Trump has not held the job of president of the United States, however, in more than 18 months, a point the statement did not seem to address.
Although presidents can declassify certain information, there is a formal process for doing so, and it is not clear whether Trump followed it.
Additionally, it appears unlikely he held the authority to declassify some of what was potentially contained in the documents ― like information on spies and nuclear weapons. The Washington Post reported earlier in the week that there was information on the U.S. nuclear arsenal among the materials at Mar-a-Lago. (Trump called the report a “hoax.”)
Presidents are required to turn over documents to the National Archives under the 1978 Presidential Records Act. But the National Archives was reportedly aware for months that Trump had been skirting those rules; over a dozen boxes of documents were recovered earlier this year.
Attorney General Merrick Garland suggested this week that authorities searched Trump’s home and office because they exhausted other options to recover what appears to be highly sensitive information. On Monday, according to the unsealed search and seizure warrant, FBI agents took more than 20 boxes of material along with other items labeled top secret. Some were even described as “various classified/TS/SCI documents,” using the abbreviation for “sensitive compartmented information.” Such information is supposed to be viewed in a special, secure facility called a SCIF.
If Trump truly had a “standing order” to declassify anything he took home, it has not been made public.
Trump allies have argued that the classification status of these materials was probably nothing more than a clerical error ― that is, Trump declared the documents to be declassified but they were never formally marked that way.
Conservative attorney Jonathan Turley told Fox News on Friday that the end of Trump’s term was a “very chaotic time” with the Capitol attack and “all the controversies.” The Trump administration may not have had time to go through the usual process, he said.
Kash Patel, a top Pentagon staffer and Trump adviser, similarly told Breitbart News that the markings were never updated. Patel claimed he was “there with Trump when he said, ‘We are declassifying this information,’” Breitbart reported.
But the rules are there for a reason. A former FBI special agent, Asha Rangappa, explained how the declassification process was supposed to work in a series of tweets that emphasized the effect it has on national security. The process, she argued, ensures that federal agencies can make the correct preparations.
“If someone is declassifying info that impacts sources and methods, it offers time to protect them or prepare for blowback,” Rangappa said.
However, a standing declassification order from Trump would be “insane to try to enforce,” Bradley Moss, a national security attorney and frequent Trump critic, said.
“That would mean staff officials would have to follow him to the residence every single time he brought those documents with him to make sure to cross out markings and stamp it ‘declassified’ so that other officials when they saw it, knew to handle it as declassified,” Moss said Friday night on MSNBC.
“You don’t get to declassify something just for yourself. You declassify it for everything,” added Neal Katyel, who served as an acting solicitor general of the United States in the Obama years, in the same segment.
Alex Wellerstein, a nuclear historian, said in an interview with Vox that the ranks of classification are supposed to correspond to how damaging the information would be to the nation if it were released. It could be very damaging if Trump had a document saying the U.S. acknowledges that Israel has a nuclear arsenal, Wellerstein said as an example. (The U.S. does not officially acknowledge Israeli nukes.)
Whether or not the Mar-a-Lago materials were technically classified or declassified, however, could be beside the point.
The unsealed warrant revealed that the Department of Justice was investigating Trump under several statutes. None of them require that the information be classified, former U.S. attorney and legal commentator Barb McQuade pointed out in an early Saturday appearance on MSNBC.
“Classification is irrelevant. Government documents that pertain to the national defense may not be withheld from the government upon request for return,” McQuade said in a tweet. “The obstruction charge in the warrant suggests Trump tried to conceal what he had.”
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This article originally appeared on HuffPost and has been updated.
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