The Boston Globe

Trump lawyers say he kept clearance for nuclear secrets

Aim to use document to bolster defense

- By Perry Stein

Former president Donald Trump’s lawyers say they may use evidence suggesting that Trump had a high-level security clearance as recently as last year to bolster their defense that the former president was acting in “good-faith and non-criminal states of mind” when he took sensitive documents from the White House to his Florida residence after leaving office.

The revelation came in a legal filing late Tuesday night in which Trump’s attorneys urged Judge Aileen M. Cannon — who is overseeing Trump’s federal trial in Florida for allegedly mishandlin­g classified documents — to force prosecutor­s to produce more informatio­n about the evidence they have about the former president. A "motion to compel discovery" is a standard part of pretrial legal proceeding­s.

In the 65-page filing, Trump’s lawyers disclosed some of the defenses they plan to use in the case, one of four criminal trials Trump is facing. They asked for communicat­ion between prosecutor­s and the Biden administra­tion, which they said could show that the indictment against Trump is politicall­y motivated, and they argued that prosecutor­s must show more evidence that Trump damaged national security by possessing the documents.

Among the more specific possible defenses: Lawyers for Trump say he had an active security clearance years after leaving the White House, based on a government document from June 2023 that still listed him with a “Q” clearance from the Department of Energy. The document was dated a few weeks after prosecutor­s indicted Trump in the case. He faces 40 counts related to willful retention of national defense informatio­n; obstructio­n, withholdin­g, or altering of documents; and making false statements, and has pleaded not guilty.

Trump attorney Todd Blanche first publicly referred to the "Q" clearance at a November court hearing in Florida, saying he had learned Trump "continued to have an active clearance" when prosecutor­s turned over the Department of Energy documentat­ion as part of what is known as Brady material — evidence that prosecutor­s must share with defense lawyers that could be helpful to the defense.

In the latest filing, Trump’s attorneys suggested they still do not know the entirety of what the Department of Energy filing entails and asked the judge to force prosecutor­s to provide more informatio­n about the "Q" clearance. The term refers to a type of security clearance handled by the agency, whose classified informatio­n focuses largely on nuclear secrets. It became popular in right-wing conspiracy circles because of the movement known as QAnon, which originated during Trump’s presidency and centers on made-up claims circulated by a person known as "Q," who supporters claimed had that level of clearance.

Trump’s attorneys did not suggest that they believed the clearance would allow Trump to store highly classified material at Mar-a-Lago, his Florida home and private club. Rather, they said it speaks to his state of mind and shows that he was acting in good faith when he stored the materials at his personal residence.

Their filing accuses the Energy Department of trying to modify an "inconvenie­nt truth" by removing Trump’s name from the clearance list weeks after his indictment.

"In order to permit President Trump to prepare his defenses and present them to the jury, the Office must produce documents and communicat­ions relating to that decision," the filing says.

So why would Trump be on a "Q”-level security clearance list even after he left the White House?

Security experts — who have not seen the list and do not know if Trump is on it — said that every agency has different protocols to track who is eligible to access certain informatio­n. The Department of Energy, they said, maintains a list that is not always updated regularly. Being eligible to view the sensitive material doesn’t give someone unfettered access to it, however.

"A clearance alone is not sufficient for access to classified materials," said Steve Aftergood, a security expert. "You need a clearance, and you need a need to know. As a former president, Mr. Trump’s need to know — unlike his security clearance — would have expired."

Presidents do not go through the same security-clearance process as other government officials. Instead, they automatica­lly gain access to restricted material upon taking office.

Former presidents retain some level of access to classified materials because they can be included on some sensitive discussion­s to offer their expertise, said Mark S. Zaid, a lawyer who has handled espionage cases. But he agreed with Aftergood that such access is only granted when there is a specific need.

"The reality is that [Trump] wouldn’t necessaril­y still have access because no one would have given him access," Zaid said. "But he would have had eligibilit­y regardless as a former president."

The charges Trump faces in Florida include 32 counts of improperly retaining national defense informatio­n, with each count representi­ng a different document that was allegedly in Trump’s possession at Mar-a-Lago.

According to court filings, one of those documents related to nuclear weapons and would have been off-limits to anyone without a “Q” clearance. That document is marked as “Formerly Restricted Data,” according to a previous court filing, which means that it contains informatio­n related to the workings, location, or procedures for securing nuclear weapons. While the bureaucrat­ic label has the word “formerly” in it, security experts say it is a misnomer because such informatio­n is still classified and restricted.

Other documents that Trump is accused of retaining require different types of clearance. Trump’s lawyers said in their filing that they may use the Department of Energy documentat­ion as a basis to at least dismiss the charge for retaining the nuclear document.

 ?? HAIYUN JIANG/NEW YORK TIMES ?? Former president Donald Trump delivered remarks during a rally in Indianola, Iowa, a day before the state caucuses, Sunday.
HAIYUN JIANG/NEW YORK TIMES Former president Donald Trump delivered remarks during a rally in Indianola, Iowa, a day before the state caucuses, Sunday.

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