Former President Donald J. Trump claimed Friday that before leaving office, he released all documents the FBI found during this week’s search for his Florida home, which agents described as classified in a list of what they found in – including several caches that were apparently marked “top secret.”
“It was all released,” Trump said in a statement.
The claim echoed a claim made in May by Kash Patel, a former Trump administration official and a strong supporter of Mr Trump, after the National Archives found material marked as classified in boxes of documents it recovered from the Mar. Trump a-Lago club and estate. He claimed that Mr. Trump had considered those files declassified shortly before his departure, but the markings had not been removed from them.
Mr Trump has not given any details, but if he says he made a general, oral invocation that all the files he brought to Mar-a-Lago were unclassified, without any formal, written record, that would be difficult to prove. or refute. Even if there is no evidence that Mr Trump followed normal procedures for disclosing certain types of information, his lawyers could argue that he was not constitutionally required to obey such rules.
But in any case, such a claim would not resolve the matter. For starters, two of the laws referenced by a search warrant issued this week in Mar-a-Lago—sections 1519 and 2071 of Title 18 of the United States Code—make taking or concealing government documents a crime, whether they are had something to do with national security.
On the other hand, laws against the confiscation or hoarding of material with limited national security information, which are generally punished more severely than theft of ordinary documents, do not always correspond to whether the files are technically classified.
That’s because some criminal laws enacted by Congress to protect certain national security information work separately from the executive branch’s system of classifying documents created by presidents using executive orders as “confidential,” secret’ or ‘top secret’.
In particular, a third law to which the warrant refers was Section 793, which carries a penalty of up to 10 years in prison per violation. Better known as the Espionage Act, it was passed by Congress during World War I, decades before President Harry S. Truman issued an executive order to create the modern executive classification system.
As a result, the Espionage Act does not state whether a document is classified as classified. Instead, it becomes a crime to keep without permission documents related to national defense that could be used to harm the United States or aid a foreign adversary.
Prosecutors could argue that a document meets the standard of that act, regardless of whether Mr. Trump declared it unclassified shortly before his departure; similarly, defense attorneys could argue that it didn’t meet that standard, regardless of how it was marked.
“Because the Espionage Act speaks in terms of national defense information, it leaves open the possibility that such information could go unclassified as long as an agency takes steps to protect it from disclosure,” said Steven Aftergood, who leads the Project on Government. . Secrecy at the Federation of American Scientists in Washington.