Former President Donald Trump has been raving about social media for weeks that he couldn’t possibly have misused Top Secret records because he had already released them. Now those arguments are finally starting to make their way into his Mar-a-Lago case.
On Monday morning, Trump’s legal team filed court documents claiming that Trump had unfettered power while in the White House to release this sensitive national security data — pointing to an executive order from President Barack Obama that only the president has the ability to gave decision to do so.
“The President has absolute authority under the Executive Order to release all information,” lawyers wrote. “There is no legitimate claim that the declassification of documents by the Chief Executive requires approval from bureaucratic components of the executive branch.”
But Trump’s lawyers notably stopped claiming that the former president actually… did release the documents – or describe how that allegedly happened. It’s a bit of legal sleight of hand and seems to offer the argument that Trump released documents without really arguing that point.
As legal scholars closely monitoring this case have noted, lawyers who put that in writing could force them to back it up with evidence that Trump actually took appropriate steps as president to make that happen.
And so far there is no sign that he did.
Ever since a team of FBI special agents raided Trump’s oceanfront estate in Palm Beach, Florida in search of classified documents he shouldn’t have kept there, MAGA allies have defended the former president on the grounds that all documents in his possessions were in order for him. still have. Kash Patel, a lawyer who climbed up to military and spy offices during the Trump administration, put it simply when he told TBEN News last month that the president can “literally stand over a series of documents and say, ‘These have now been released. ‘”
In reality, a president’s formal decision to release a particular set of national security documents is really just the first step in a bureaucratic process. The government agency that initially marked a record as “confidential,” “secret,” or “top secret” must go back and relabel that record. And the claim that Trump just waved his hand and did that has been hotly debated by national security advocates.
Yet Trump continues to claim that he did just that on his own social media network, Truth Social.
“Luckily I was declassified!” Trump wrote last week.
On Monday, Trump’s attorneys advanced this argument in a court filing supporting U.S. District Judge Aileen Cannon’s recent decision to drop the FBI investigation and have a so-called “special master” oversee the review of documents. that are marked as classified. However, the court file narrowly avoids saying how and when Trump supposedly released these records. Instead, it just confirms the common notion that a president has that power, something few would argue against.
“The government does not dispute — it admits — that the president has broad authority over the classification of and access to classified documents,” his lawyers wrote.
The move could be seen as a ploy to put federal prosecutors in the impossible position of having to prove a negative, essentially saying you can’t prove Trump not done release these records.
Or it could simply be a ploy to appease Trump, to show the former president that his lawyers are making arguments that he released the documents, even if his lawyers are actually avoiding those arguments.