Judges this week highlighted the gap between Mr. Trump’s public claims that he declassified everything and his lawyers’ reluctance to repeat that claim in a courtroom.
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Trump Claims He Declassified Documents. Why Don’t His Lawyers Say So in Court?
Judges this week highlighted the gap between Mr. Trump’s public claims that he declassified everything and his lawyers’ reluctance to repeat that claim in a courtroom.
WASHINGTON — Former President Donald J. Trump claimed on Wednesday that when he was in the White House, his powers were so broad he could declassify virtually any document by simply “thinking about it.”
That argument — which came as he defended his decision to retain government documents in his Florida home in an interview with the Fox host Sean Hannity — underscored a widening gap between the former president and his lawyers. By contrast, they have so far been unwilling to repeat Mr. Trump’s declassification claim in court, as they counter a federal investigation into his handling of government documents.
Over the past week,
a federal appeals court in Atlanta — along with
Mr. Trump’s choice for a special master to review the documents seized last month — undermined a bulwark of his effort to justify his actions: Both suggested that there was no evidence to support the assertion that Mr. Trump had declassified everything — in writing, verbally or wordlessly — despite what the former president may have said on TV.
On Thursday, the special master, Judge Raymond J. Dearie, also appeared to take aim at another one of Mr. Trump’s excuses — that federal agents had planted some of the records when they searched his Mar-a-Lago estate. In an order issued after the appellate court had ruled, Judge Dearie instructed Mr. Trump’s lawyers to let him know if there were any discrepancies between the documents that were kept at Mar-a-Lago and those that the F.B.I. said it had hauled away.
By the time the Hannity interview aired late Wednesday, a three-judge appellate panel of the Court of Appeals for the 11th Circuit — which included two jurists appointed by Mr. Trump — had blocked part of a lower court order favorable to the former president. The panel brushed aside the suggestion that he had declassified 100 highly sensitive documents found in his residential and storage areas as both unfounded and irrelevant.
The court wrote that there was “no evidence that any of these records were declassified” and took note of the fact that, when Mr. Trump’s lawyers
appeared before Judge Dearie this week, they too “resisted providing any evidence that he had declassified any of these documents.”
The appellate panel went on to declare that the declassification issue, which Mr. Trump has repeatedly thrust at the center of the case, was “a red herring” that would not have factored into its ruling even if it had been extensively argued before them. Even if Mr. Trump had in fact declassified the records, the judges wrote, he was still bound by federal law, including the Presidential Records Act, that required him to return all government documents, classified or unclassified, when he left office.
Declassifying an official document would not alone “render it personal” or turn it into a possession he could hold onto after leaving office, the court said.
The judges in Atlanta were not alone in their opinion.
One day earlier, Judge Dearie expressed a similar form of skepticism. He pointedly told Mr. Trump’s legal team that since the classified documents were clearly marked classified, he intended to consider them as classified — unless they offered evidence to the contrary.
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