During a Tuesday court hearing, an independent judge tasked with reviewing the thousands of documents seized from former President Donald Trump’s residence in Palm Beach, Florida, pressed Trump’s legal team on whether they would provide evidence that Trump declassified any of the materials.
Trump claims that he has declassified government records taken from Mar-a-Lago. Trump’s legal team has not made such an argument in ongoing litigation surrounding access to the documents, and in court filings on Monday his team said they opposed having to shortly disclose “specific information regarding declassification,” as the Justice Department (DOJ) had requested, and instead proposed timing closer to early November.
During his first public hearing as a special master on Tuesday, Judge Raymond Dearie said that if the government provided him with evidence that there were classified documents taken from Mar-a-Lago, and Trump’s side doesn’t advance “any claim of declassification,” as far as he’s concerned “that’s the end of it” and he’ll believe the materials were classified.
Dearie has been assigned to review all of the materials taken by the FBI in its August search of Mar-a-Lago—including roughly 100 documents containing classification markings—and make recommendations on which should be kept from the Justice Department on the grounds of attorney-client or executive privilege. During Tuesday’s hearing in Dearie’s Brooklyn courtroom, it appeared the judge might not be as sympathetic to Trump’s legal arguments as his team might have hoped when they recommended him for the position. (Trump’s legal team did not respond to TIME’s request for comment, and DOJ declined to comment.)
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Trump’s attorney Jim Trusty responded that they were not in a position to discuss declassification until they saw the documents in question, and added that they could not fully disclose their defense, per CNN. In a separate filing on Tuesday, Trump’s team also argued that the federal government has failed to provide any evidence that the documents in question are classified, adding that “the president has broad authority governing classification of, and access to, classified documents.”
Whether the roughly 100 documents with classification markings taken from Mar-a-Lago actually are classified sits at the heart of the Justice Department’s investigation, which is probing whether Trump broke federal law by removing the materials from the White House. In an interview with Breitbart News in May, former top Trump aide Kash Patel said he had witnessed Trump declassify documents that the National Archives and Records Administration (NARA) said were identified as “classified national security information” that were shipped to Mar-a-Lago. (NARA’s tip about the materials launched the current DOJ investigation and subsequent FBI search.)
“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Patel told Breitbart. Trump affirmed Patel’s account on September 15 on High Hewitt’s radio show. But some experts are skeptical he could declassify such documents, including documents marked “Top Secret,” so easily; under a typical declassification process, Trump would notify the agencies and departments that dealt with the information in question and change the classification markings on the documents.
“Ordinarily, an authorized U.S. Government official with original classification authority can declassify a document through the process of crossing out the classification markings and stamping the document as declassified, including identifying who declassified, when, and upon what authority,” explains Bradley P. Moss, a lawyer specializing in national-security issues. Moss states that the classification markings will remain valid until this process is completed.
The President has significant authority to deal with classified information. This fact was confirmed through several executive orders throughout the years. In 2009, then-President Barack Obama issued the most recent executive order. It directs that the classified information be classified and declassified by the heads and representatives of those agencies or departments. According to the New York Times reported, the U.S. Court of Appeals for the Second Circuit ruled in 2020 that “declassification, even by the President, must follow established procedures.”
“It is entirely possible Mr. Trump issued verbal orders to declassify and did not properly notify the rest of the government,” Moss says. “That would be insanely reckless, and yet completely typical for someone like Mr. Trump who cared not at all about those kinds of details.”
This could lead to the investigation entering uncharted legal territory. There isn’t a Supreme Court ruling about what it would mean for a president to declassify materials outside of normal procedures. It remains to be seen whether Trump’s team will argue before Dearie that the former President declassified the materials while in office.
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