Trump's loudmouth establishes a top-secret case against him

Illustrative photo by Kelly Caminero/The Daily Beast/Getty

Illustrative photo by Kelly Caminero/The Daily Beast/Getty

Former President Donald Trump’s long history of reckless tweeting may have come back to haunt him, strengthening any Justice Department case that the documents he improperly kept after leaving the White House were in fact still top secret.

“It’s poetic how much of this litigation, if he were charged, will be determined by his own actions,” said Kel B. McClanahan, a national security attorney who teaches at George Washington University.

That’s because of the way Trump, while president, tweeted many promises to declassify documents, then backed off and used the Justice Department to vigorously defend the sanctity of how the government classifies documents. Basically, he has trapped himself, as he now faces an FBI investigation into whether he endangered the safety of the American people by mishandling government secrets and potentially violating the Espionage Act.

Essentially, Trump’s nonchalant style on Twitter forced the administration to take a tougher stance on what it means to declassify a document, forcing the administration to emphasize the rigorous, multi-step nature of the bureaucratic process. He now can’t say that it just takes a wave of his hand.

‘When the president does it, that means it’s not illegal’

As a result of the FBI search last Monday at Mar-a-Lagothe former president and his allies have resorted to the defense that the documents were no longer truly sensitive.

On Friday, Trump took to his own social network, Truth Social, to make his claim.

“Number one, everything was declassified,” he said. “Number two, they didn’t need to ‘seize’ anything. They could have had it any time they wanted without playing politics and breaking into Mar-a-Lago.”

Over the weekend, Trump reiterated that claim while complaining about “the early morning raid on… the locked, secure storage area where unclassified documents were kept.”

His loyal bulldog Kash Patel, the MAGA lawyer Trump placed in the Defense Department and controversially sought to make him a top CIA official, has taken to conservative media outlets to make the same claim.

During an interview With Fox News host Maria Bartiromo on Sunday, Patel said the president “can literally stand in front of a set of documents and say, ‘These are now declassified.'”

But Trump could run into some trouble, thanks to the legal precedent created by the many sudden crises he himself caused while in office, when he routinely used hasty social media posts and press releases to lash out at the CIA or FBI.

Every time Trump publicly criticized a secret mission, journalists supported him, demanding access to government records that the president had just accidentally made public. When those public records requests failed, news organizations were forced to sue for government violations of the Freedom of Information Act. In every case, the Justice Department was quick to somehow justify keeping that information secret.

“Trump was very good at doing really crazy things, knowing that the DOJ bureaucracy was going to defend him. He forced them to participate in these trials. He forced them to defend indefensible things. And because they were the Department of Justice, they won,” McClanahan explained.

An example came in October 2020, when Trump tweeted that he “fully authorized the total declassification of any and all documents related to the largest political CRIME in American history, the Russia Hoax. Similarly, the Hillary Clinton email scandal. No redactions!”

The surprise announcement seemed to reinforce a long legal fight that investigative reporter Jason Leopold, then at BuzzFeeds News, had with the Justice Department and the FBI to gain access to documents from the Trump-Russia investigation led by special counsel Robert Mueller.

But then Trump White House chief of staff Mark Meadows went into damage control mode and signed a judicial declaration claiming that the tweets somehow didn’t mean what everyone thought they did.

“The court sided with the government and said, ‘We will not order disclosure. Official process was not followed,’” summarized Bradley P. Moss, a national security attorney who sometimes advises The Daily Beast on public records requests.

A second example came in the fallout from a boldly worded statement in September 2018 by Sarah Huckabee Sanders, the White House press secretary at the time. Trump was furious at the way his own federal police had investigated a campaign adviser, Carter Page, and wanted to expose all aspects of the operation.

As a result, Sanders issued a press release stating that Trump had “directed the Office of the Director of National Intelligence and the Department of Justice (including the FBI) ​​to arrange for the immediate declassification of the following materials: (1 ) pages 10-12 and 17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page.” The administration published 412 pages, but the information contained in 21 of those pages remained hidden behind redactions.

When investigative reporter Brad Heath, then in USA Today, searched those records with a FOIA request, also hit a brick wall. The Trump administration refused to release them. Heath and the James Madison Project sued to gain access to the documents, and once again the matter fell on a technicality. US District Judge Amit P. Mehta ruled that despite the president’s power to restrict public access to government secrets, mere statements from the White House are not enough to declassify anything.

The judge noted to a court affidavit signed, this time by high-ranking DOJ employee G. Bradley Weinsheimer, explaining that “DOJ never received a declassification order related to the remaining materials at issue in this case.”

But the defining case came after Trump’s July 2017 tweet complaining about the way journalists were covering problems besetting the CIA as it armed and supported pro-democracy rebels in Syria.

“The Amazon Washington Post fabricated the facts about my ending massive, dangerous and wasteful payments to Syrian rebels fighting Assad,” Trump tweeted at the time.

The New York Times used that tweet for FOIA records, claiming that Trump had indeed declassified information about the secret spy mission. When the Justice Department responded that a simple tweet was not enough, the matter made its way before a federal judge and an appeal panel.

“Declassification cannot occur unless designated officials follow specific procedures,” the appeals court said. ruled in July 2020.

Moss said that sealed the deal.

“Even the president has to go through a formal declassification process. It doesn’t matter what he says unless there’s a follow-up,” Moss told The Daily Beast. “These are the only signs we have. If Trump ultimately loses in a criminal case, it will be because of the precedent set in FOIA cases brought in his administration.”

Any potential federal prosecution of the former president will have to examine whether Trump actually complied with any alleged orders he made to have the documents declassified. National security lawyers told The Daily Beast that any criminal case would hinge on Trump proving that his aides received the order, but somehow failed to carry it out.

Even Patel acknowledged that this is more complicated than waving a magic wand.

“We have to go through a rigorous process to do that procedurally,” he acknowledged on Fox News over the weekend. “But the president is and always [has] has been the unilateral classification authority to classify and declassify. If you say something is declassified, it’s over. Then it’s declassified.”

But because declassification is such a bureaucratic process, much of the evidence of what really happened would already be available to the Justice Department. Any document marked as classified can only be declassified after the respective federal agency has implemented the change, and that may require an agency assessment of any potential harm that may result from making the information public. The spies could be discovered. Secret intelligence gathering missions could be compromised. Ongoing investigations could be ruined.

“If a president declassifies something in a forest and no one listens to it, is it really declassified?” McClanahan asked.

Read more at The Daily Beast.

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