Throughout the Mar-a-Lago saga, it has been a running joke: Donald Trump and his media propagandists kept insisting he had declassified the documents he hoarded, supposedly proving his innocence. Yet his lawyers kept refusing to fully embrace this view, suggesting that as a legal argument, it’s rather worthless.
This episode reveals the perils of lawyering by Fox News: If you tailor arguments to a forum where damning facts are never admitted as evidence and Trump’s defenses never face real scrutiny, eventually you’ll hit a wall of legal reality.
This bizarre turn came after Trump and the Justice Department submitted filings to Judge Raymond Dearie, the special master conducting a review of documents that the department secured in the search of Trump’s Mar-a-Lago resort, in response to Trump’s demands for that review.
Specifically, the legal team objected to what it said was Dearie’s request that it “disclose specific information regarding declassification to the Court and to the Government.”
That’s not all Trump’s legal team said, however. There’s also this:
Trump’s lawyers wrote that they don’t want Dearie to force Trump to “fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order” — a remarkable statement that acknowledges at least the possibility that the former president or his aides could be criminally charged.
Here’s what this means: Dearie essentially asked Trump’s lawyers to put up or shut up. And they chose Door No. 2.
The dispute is about whether the seizure of documents from Mar-a-Lago — which was approved by a judge who saw probable cause — was legitimate. Trump demanded the special master to review those documents, apparently believing this would reveal that the search wasn’t legitimate.
But now it turns out that, in an important sense, the special master is calling Trumpworld’s bluff.
Dearie appears to have asked Trump’s lawyers whether their legal defense of Trump actually is that he declassified the documents. As it is, violations of the three statutes cited in the search warrant don’t even have to involve classified documents. But Dearie seems to be trying to nail down precisely what Trump’s legal team is claiming here.
Andrew Weissmann, former general counsel for the FBI, notes that Dearie’s questions required Trump’s lawyers to “come up with some reason for not answering” whether they’re claiming Trump declassified the documents. Which means they don’t want to say, because there’s no serious evidence that he actually declassified them, and because it isn’t a legal defense anyway.
“What’s really going on is that the lawyers don’t want to lose their bar ticket by saying something with very little factual support,” Weissmann told me. “Also, if they were to make this claim, and it’s not true, they subject their client to a false-statement charge.”
In other words, Trump’s lawyers don’t want to get behind Trump’s own defense of himself.
What’s darkly amusing here is that Trump’s own claims that he declassified the documents are what led the special master to demand that Trump’s lawyers put up or shut up.
“Their client has put them in the position where they have no good answer to this obvious problem,” Weissmann told me. He noted that if Trump’s lawyers won’t say he declassified the documents, that means “they’re clearly classified, and they clearly belong to the government.”
None of this necessarily means Trump will face charges. But it shows that one of his most cherished defenses won’t wash. And while Trump-appointed Judge Aileen M. Cannon (who named Dearie) has stalled the investigation, Dearie’s questions suggest he could resolve this dispute quickly, Weissmann says, which could allow the investigation to proceed again.
There’s still more. The New York Times reports that former White House lawyer Eric Herschmann personally warned Trump late last year — nearly a year ago — that hoarding the documents put him in legal jeopardy.
Trump propagandists began using the declassification excuse a few months later. So Trumpworld began making this claim after Trump had been informed he was on thin legal ice, suggesting they knew the defense was bogus.
“After he was told that it is illegal to have the documents, he starts spinning out a false claim about declassification,” New York University law professor Ryan Goodman told me.
Goodman noted that prosecutors might use Trump’s public assertions that he declassified documents against him, as they appear both false and deliberately designed to disguise a corrupt act. This could show “corrupt intent” and “proof of willfulness,” Goodman said.
In the end, Trump might not have much control over whether he faces charges. He can stall endlessly, spread propaganda to deceive millions into viewing him as the victim, and hint at retaliatory street violence. But the decision will come down to whether the facts suggest conviction is achievable and whether Attorney General Merrick Garland weighs the supposed social downsides of acting.
But one thing is clear right now: While lawyering by Fox News is essential to Trump’s propaganda strategy, it might not end up serving him well in the forums where legal facts and arguments actually matter.