The Trump legal brain trust’s latest filing has been met with proper ridicule. From its characterization of the documents retrieved from Donald Trump’s Mar-a-Lago estate as “purported ‘classified records’ ” (Is there some doubt?) to its contention that the former president had the power to declassify documents (even though the absence of classification would not protect him from prosecution under the Espionage Act), the brief is incoherent, to put it mildly. Former FBI special agent Asha Rangappa tells me, “It literally contradicts itself in several places.”
Nevertheless, the filing is quite revealing, even if any rational judge would dismiss it out of hand. It demonstrates that Trump really has no excuse for having highly classified documents unsecured at Mar-a-Lago.
The brief never explicitly claims that Trump declassified any document — only that he had the power to do so. As former acting solicitor general Neal Katyal tweeted, “If Trump really thought he had declassified the documents, he [and] his lawyers would have said so. The fact that they never say in court what they say outside of [court] is itself damning.”
It’s a puzzle what his lawyers think would be a defense. Former federal prosecutor Andrew Weismann tells me, “His only possible defense is ‘I did not know I had government documents at Mar-a-Lago.’ ” But that won’t work, Weissmann says, because “there is so much contrary evidence that we know of already.” As he points out, the government executed its search warrant after Trump’s team said it returned everything because the government knew that assurance was false.
Rangappa offers: “[Trump] seems to be arguing that he converted these into personal records under the Presidential Records Act so they are his or, alternatively, even if they aren’t his the Justice Department can’t institute a separate enforcement action to recover them.” But, of course, the PRA doesn’t rule out an Espionage Act prosecution.
There is a risk of overanalyzing the brief. Constitutional scholar Laurence Tribe explains, “His defense comes down to ‘I’m President Trump.’ ” Trump seems to balk at the suggestion that he has to explain to the FBI which documents he considers privileged. “To me, that’s equivalent to: ‘Shut up, I explained.’ ” Tribe says. “Not much of a defense.”
Should the government decide to indict Trump, it will do so in D.C., where the grand jury sits and where documents that belong to the government were first taken from the White House. Once he’s before a competent trial judge and a jury, he will be hard-pressed to make any of his many excuses. For example:
- “The documents were planted.” There is no evidence for that.
- “I declassified them.” Trump’s own lawyers refuse to make that claim in a legal brief. Even if they did, it would be irrelevant under the Espionage Act.
- “I get to keep whatever I want.” He might believe that, but that does not make it so in a court of law.
- “It’s my attorneys’ fault.” Evidence suggests Trump went through the boxes and that he knew exactly what was included. Moreover, if this devolves into a finger-pointing exercise, his lawyers would have every reason to flip on him if for no other reason than to avoid their own liability.
Trump has spent much of his life saying outrageous, false things. That simply does not work in court when the law is crystal clear and people outside the MAGA cult are rendering judgment. That may explain why Trump’s aim has always been to delay and delay, hoping some future Republican president (himself perhaps!) will, if needed, pardon him.