If the Department of Justice decided to pursue an unprecedented case against former President Donald Trump, his defense that he had declassified the suite of documents seized during a search of his Mar-a-Lago residence provides a limited defense.
According to legal experts, Trump had wide-ranging powers to declassify documents during his time in office. Yet his request, likely concluded in a sweeping fashion, to declassify the amount of material discovered on his property, would ignite a chain of events resulting in such action being documented.
Legal experts also noted that his broad powers were unlikely to permit the storage of presidential records in a post-presidential home.
In posts on social media, Trump revealed documents removed from his residence were “all declassified,” he later clarified in a statement to Fox News that he had a “standing order” enabling him to declassify any documents.
But experts are poking holes in that defense, saying there would be a trace of such declassification.
Kel McClanahan, Executive Director of National Security Counselors, a non-profit public interest law firm that specializes in national security law, explained how a presidential decision to declassify documents would recategorize those documents across agencies.
“When you declassify a document, it’s declassified everywhere,” McClanahan explained.
“The CIA’s copy is declassified, the NSA’s copy is declassified, the National Security Council’s copy is declassified.”
He noted that regardless of how Trump declassified the documents, he would have to communicate that “so that they mark it or propagate a memo out to people that this document is now declassified.”
McClanahan noted this would be the procedure regardless of who was in the room with Trump when he said, “I am declassifying this document.”
