By Tierney Sneed
Former President Donald Trump’s vague claims that he may have declassified documents taken to Mar-a-Lago are running into a brick wall in the way the litigation over the search is playing out in court.
The US 11th Circuit Court of Appeals — in an unanimous opinion from an appellate panel that included two Trump appointees — said that any uncertainty over whether the 100-plus documents were still classified was a “red herring,” as it allowed on Wednesday the Justice Department’s criminal probe into them to resume.
Serving as a split screen to the 11th Circuit ruling was an interview Trump gave Fox News’ Sean Hannity, where he tripled down on the notion that he declassified, or could have declassified, the documents in question.
“If you’re the President of the United States you can declassify just by saying it’s declassified,” Trump said. “Even if just by thinking about it because you are sending it to Mar-a-Lago or wherever you’re sending it.”
Trump’s sweeping claims go far beyond the murky way his lawyers have cast doubt on whether the documents obtained in the search were actually still classified. In court, his team has fastidiously avoided saying that Trump himself declassified the documents and has resisted invitations that they do so.
This dynamic was not lost on the 11th Circuit. The court highlighted the lack evidence showing the documents being declassified, even as the court had determined that whether the materials had been declassified was irrelevant to the department’s bid to revive its investigation.
Key to the dispute before the appeals court was whether the materials were possessions of Trump’s that had a level of personal significance that would justify keeping them out of the Justice Department’s hands.
The arguments Trump was making about why those materials should be withheld from investigators were so far-fetched, that few court observers were surprised that his claims ran into a buzzsaw at the appeals court.
The 11th Circuit was “responsive to both the framing of the issue and the issue itself,” said Steve Vladeck, a CNN legal analyst and a professor at the University of Texas School of Law. The court was saying, “This isn’t the right way to think about it, but if it were, Trump would still lose.”
Why Trump’s rumblings about declassification were meaningless to the appeals court
The embrace of Trump’s claims by US District Judge Aileen Cannon, who put the DOJ criminal probe of the documents on pause while a so-called special master reviews them, has attracted criticism from a broad swath of legal experts.
The appeals court, which had been asked to intervene by the Justice Department, pointedly noted that Cannon had not explained why the documents in question would be materials Trump would have a personal interest in.
“For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one hundred documents with classification markings,” the appeals court said.
The appeals court opinion included an explanation of what the classification markers signal, citing an executive order that establishes that classified documents are “owned by, produced by or for, or … under the control of the United States Government.”
Declassifying those documents would not change their content or render it personal, the appeals court said.
“So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them,” the 11th Circuit wrote.
“What they’re saying here is that Trump’s claim to the return of the documents turns on whether or not the documents are personal to him — his medical records for example, if they had been seized, or maybe attorney client-privilege,” Paul Rosenzweig, a national security law expert, said Thursday on CNN’s “At This Hour with Kate Bouldan.”
“But classified information by its nature — even if it is declassified — still remains government information and not personal to the president of the United States. And he can’t convert that, even in his own mind, just by saying so,” said Rosenzweig, who is a former prosecutor and also worked at the US Department of Homeland Security.
The 11th Circuit was able to act quickly to resolve the dispute because the Justice Department turned to the appeals court with a very narrow and clear-cut request, according to Brandon Van Grack, a former attorney in the national security division at the Justice Department.
“The singular issue was if there was any reason that DOJ cannot possess and use these documents marked as classified,” Van Grack said. “Legally it was so clear that there cannot and should not be that restriction”
The 11th Circuit dismantles the declassification argument just the same
Even as the appeals court said it didn’t matter whether the documents had been declassified, the panel went to lengths to pull apart the logic being put forward by the Trump team for questioning the classification status of the documents.
Wednesday’s opinion came after Judge Raymond Dearie, the senior judge who was tapped as special master, expressed deep skepticism at a Tuesday hearing toward how the Trump team was teeing up the declassification issue.
The appeals court pointed out that the record in court “contains no evidence that any of these records were declassified.” The panel also referenced how Trump’s lawyers had apparently objected to a request from Dearie that they disclose what specifically among the seized material had been declassified.
The 11th Circuit additionally laid out the series of events that brought the case to the appeals court. In that narrative, the panel highlighted facts that further undermined Trump’s reliance on the notion that he may have declassified the documents.
Its opinion recounted the two previous tranches of documents obtained from the Florida resort that had included materials with classified markings, as well as the Trump team’s failure to take steps to block the FBI from accessing the first tranche, retrieved by the National Archives in January. Nor did Trump make any privilege assertions when his representatives produced documents in June that they said put them in compliance with a grand jury subpoena demanding documents marked as classified.
That discussion was “emblematic of how much of the opinion is meant for the public,” Vladeck said, noting the appeals court was also bolstering its reasoning for the possibility of an appeal to the US Supreme Court.
Along with these details about the documents themselves, the 11th Circuit opinion put notable weight on a declaration the FBI submitted in the case elaborating on the national security risks posed by pausing the criminal investigation into the 100 documents.
“They spend a lot of time adopting the Department of Justice’s framing of the issue and descriptions of the facts that demonstrates a broader concern about the conduct at issue,” Van Grack said.
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