Soaking in the outrage and anger percolating from the conservative shoutosphere over the FBI search of Donald Trump’s Mar-a-Lago supper club, it becomes clear that they’re working on a whole slew of incorrect assumptions to justify their fiery rhetoric about an overreaching government. The big one, of course, is that Trump is being targeted solely for political purposes, not because he broke the law.
The incorrect assumption that underlies that claim is that Trump had every right to possess the papers because, when he was President, he had the ability to declassify information at will, and by taking classified papers to Mar-a-Lago in the last days of his terms obviously meant that he declassified them. Therefore, this faulty line of thought goes, he cannot be accused of illegally possessing classified documents.
First, regardless of whether the documents were classified or not, they are not Trump’s property. They’re the property of the American people. The Presidential Records Act details that all official communications and documents created or received by the President and the White House go to the National Archives–not Mar-a-Lago–at the end of the office holder’s term. So any documents, classified or not, should not be housed at Mar-a-Lago unless they are officially on loan from the National Archives. And the boxes of documents were not.
The bigger issue, though, is the complete misrepresentation of the power of the President of the United States to declassify information; this is a cornerstone talking point on conservative media like Fox. Trump, they say, cannot be accused of illegally classified documents because he obviously declassified them.
That’s not how it works. On his last day in office, the President can’t just decide that, say, a file cabinet of information is all declassified, like the Pope issuing blessings by spraying holy water on people. There’s actually a process and documentation to verify and confirm declassifications, and that process is there for a reason.
Remember when Trump supposedly “declassified” top secret information he told to Russian Foreign Minister Sergey Lavrov and the Russian Ambassador Sergey Kislyak in a May 2017 Oval Office meeting? In fact, Trump did no such thing. In fact, what he did was what’s called a “read in,” a determination where he authorized the disclosure of specific classified information to specific people.
How do we know this? Well, because the information Trump disclosed to the Russian pair wasn’t declassified. Media learned the subject matter–about an ISIS plot that had been uncovered by an embedded Israeli operative–through other sources; Freedom of Information Requests from the press were denied by the Pentagon, State Department and White House. Therefore, the information remained classified.
Trump’s offhanded disclosure created a cascade of trouble in US and foreign intelligence communities. The US State Department informed Israel of the leaked information, prompting Israel to pull its operative from his assignment. The CIA also had to extract a high-level American mole working within the Russian government because it feared something Trump told the Russian pair would alert the Kremlin that the US had inside information. The harm lingered throughout the Trump Administration: foreign intelligence agencies were reportedly hesitant to share information afterward, fearful that the loose-lipped Trump would boastfully announce the intel during meetings with Russians or others.
The fact that Trump allegedly had classified information in an insecure location is troubling enough. The prospect that he didn’t understand why that was dangerous and criminal–after serving in office–is far more disturbing. It demonstrates Trump’s inability to comprehend the consequences of his actions.
When a document or piece of information is declassified, it triggers a series of actions designed to compartmentalize other classified information, hide intel collection methods and protect assets, human and other. During the Obama Administration, one of Obama’s executive orders, EO 13526, outline in detail what has to be done to facilitate a presidential decision to declassify material. It’s a long list–from informing the National Security Director to alerting impacted agencies to reaching out to allies–so that nothing unintended gets out.
Some information is automatically classified. Correspondence and conversations with foreign leaders typically are, because such communications can contain snippets that impact national security. Even word choice in those discussions can tip off an adversary about US foreign policy intent.
Another problem for Trump: information can be re-classified or retroactively classified. Being out of office–and reportedly barred from receiving national security briefings that ex-presidents can request as a courtesy– Trump is completely clueless about what’s happening on the world stage. He may not understand that the documents he possesses (again, illegally) contain information that is now considered classified.
Everyone remembers the BS about Hillary Clinton’s email server. Conservatives yipped about Clinton having classified documents on her server, and in another case, they complained that she left classified information out so her housekeeper could see it. Much of the information they referred to were innocuous things, like travel schedules for the Secretary of State that are classified for security purposes. (Such information is typically left to be unclassified after the fact, because reporters traveled with the Secretary, and they are notoriously not reliable secret-keepers when they’re reporting on things.)
Additionally, some of the material was retroactively classified, and other information was incidentally classified–like news stories and clippings–that are contained in larger intel packages. (Clinton had one piece of information with a marking–a (c)- in the body of a long document which could have easily been overlooked.) Heads of agencies and departments also have varying authority to declassify information or “read in” people to classified information their respective agency classified so long as it was only classified by that one agency.
Trump faces innumerable problems if it’s found that he possessed unclassified documents as a private citizen. He doesn’t have the protection of the White House to shield his sloppiness. He would be in violation of a slew of federal laws. And he is guilty of the exact thing that he and his media echo chamber accused Clinton of doing in 2016–except to a much more egregious extent. Sandy Berger, a Clinton Administration official, was found guilty and ordered to pay a $50,000 fine for trying to illegal take documents from the National Archives. General David Petraeus was given two years’ probation for one count of holding on to classified documents after he left the government. Plus there are innumerable other low-level staffers fined, fired or imprisoned for illegally possessing–intentionally or accidentally–classified documents outside proper situations.
The real question is, why did Trump have classified documents in a room in Mar-a-Lago? What was he going to do with them? Was he trying to hide them, or was he using them as leverage against his own prosecution–or worse, as leverage to, say, secure a $2 billion investment for his son-in-law or contract to host golf tournaments at a few million dollars each.
We do not yet know what classified information Trump allegedly had at Mar-a-Lago, though we do know that his very possession of it is a violation of the letter of the law. We also don’t know what prompted the FBI to get a search warrant to urgently repossess those documents, but we know whatever it was, it was startling and frightening enough for the FBI to override negotiations the National Archives were having with Trump’s lawyers to return the documents.
Will the accusations that Trump was using classified documents to benefit himself enough to pull rank-and-file Republicans out of his cult? Not the hardcore MAGAts, but for most Republicans in Congress, it will. The affidavit to support the warrant will shine the light on Trump, and it will provide an exit strategy for Republicans who must seek The Former Guy’s approval when running for office.