Did Trump break his own law?
The possession or removal of classified documents is now a felony in the US – thanks to a law signed by Donald Trump. Philip Bump explains.
There are not many people who know exactly why FBI agents searched Donald Trump’s Mar-a-Lago estate earlier this week. The FBI knows, certainly, and the former president and his attorneys probably have a good sense, given that they saw the search warrant. Everyone else is operating on what’s been revealed by Trump’s team and public reporting: the FBI search was largely or entirely a function of the investigation into Trump’s retention of documents after leaving the White House.
We know he did this, by his own admission. This year, boxes of material were turned over to the National Archives, including some that was classified. The FBI has now removed another dozen boxes.
If Trump is found to have violated federal law in removing and retaining classified documents without authorisation, he could be convicted of a felony punishable by five years in prison. It would be a felony carrying that punishment because of a law signed by President Donald Trump.
Trump’s 2016 campaign was intertwined with a similar question. His Democratic opponent, Hillary Clinton, had been found to have operated a private email server that she used for official business – including, the FBI determined, some that was classified. Trump and his allies pushed for Clinton to face criminal charges but in July 2016, FBI director James Comey said the FBI wouldn’t seek an indictment. Trump was furious.
During his first year in office, a central tool used for surveillance by the intelligence community – Section 702 of the FISA Amendments Act – was set to expire. Shortly before it did, Congress passed an extension of the authority for five years.
The extension that Trump signed into law in January 2018 contained an amendment, however. The initial code stipulated a fine or imprisonment for possessing or removing classified documents of ‘‘not more than one year, or both’’, which made it a misdemeanour charge. The law Trump signed became: ‘‘. . . shall be fined under this title or imprisoned for not more than five years, or both’’. With that, it became a felony.
Trump absconding with classified material would facially violate the law as articulated. So his allies have already been offering a rationalisation: he had declassified everything he took to Mar-a-Lago.
‘‘What I can tell you definitively is that President Trump was a transparency president,’’ former official Kash Patel said when asked this week if there was any classified material at Trump’s Florida estate. ‘‘And President Trump, on multiple occasions at the White House, declassified whole sets of documents. Including . . . every document related to not just the Russiagate scandal, but also the Hillary Clinton email scandal.’’
Trump did, in fact, order the wholesale declassification of documents related to those investigations. At that point, though, the order was to declassify documents that had already been cleared by the FBI.
In May, Patel made a slightly different argument. ‘‘Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,’’ he said. ‘‘The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified.’’
In other words, Trump declassified a bunch of stuff, even if there isn’t a record of it. We’re trudging towards a very grey area here, clearly, but it is conceivable that Trump’s defence against his potential possession of classified material may be that he declassified it while still president, even if no formal record of the declassification was made. This introduces a slew of other questions, since that material would now presumably be publicly available in some form.
‘‘The president has unilateral authority to declassify documents – anything in government,’’ Patel said. ‘‘He exercised it here in full.’’ –