No criminal charges have yet been filed against Trump or anyone else in relation to the Mar-a-Lago files. But if and when that happens, Trump’s declassification defense is unlikely to solve his or his associates’ legal problems. While Trump could have declassified whatever he liked while president, his apparent inability to produce any credible evidence that he actually did so is a genuine problem—particularly against the backdrop of an incumbent president who clearly sees the documents as still classified. More importantly, none of the criminal provisions listed in the search warrant hinge on whether the documents recovered at Mar-a-Lago are classified or not, making declassification he might have pursued largely irrelevant. At most, Trump’s declassification defense seems best suited to the political realm as a means of casting the legitimacy, not the legality, of the search into doubt. But even this is less likely to hinge on classification than the degree to which the information that Trump and his staff retained actually put U.S. national security at risk—a factor that remains unknown, but that media reports suggest could be quite serious indeed.
For better or worse, Trump’s account of his declassification authority while president isn’t entirely off base. The classification system that protects most government secrets is, in fact, a product of executive order and thus can be amended by the president. The most recent such order, Executive Order 13526, spells out detailed criteria and procedures for both classification and declassification and doesn’t give the president any direct role in the latter. Nonetheless, other presidents have directed declassification on occasion, as President Biden recently did for certain information relating to the September 11th attacks. A president can also amend the rules and procedures governing declassification as he sees fit. There is thus little reason to doubt that, if Trump had wanted to declassify the documents recovered from Mar-a-Lago while he was president, he almost certainly could have done so.
The more difficult question is whether Trump actually took such a step. There are well-established procedures in place for declassification, none of which Trump appears to have pursued. Nor did Trump take any administrative steps to change or install exceptions to these rules. He also failed to issue any memorandum or executive order directing declassification, as he did in other cases through the very end of his presidency. Indeed, at present, Trump does not appear to have memorialized whatever declassification decision he may have made in any meaningful outside way. His own former National Security Advisor John Bolton has stated, “I was never briefed on any such order, procedure, policy when I came in [or after],” and has described Trump’s assertion that he had a standing order to declassify documents as “almost certainly a lie.” [Continue reading…]