Trump legal team offers broad view of presidential powers

WASHINGTON (AP) — A recently unsealed FBI document on the investigation at Mar-a-Lago not only offers new details about the investigation, but also reveals clues to the arguments that the legal team of the former President Donald Trump intends to argue.

A May 25 letter from one of his attorneys, attached to the search affidavit, advances a broad view of presidential power, saying the commander-in-chief has absolute power to declassify anything he wants – and also that the “primary” law governing the handling of US classified information simply does not apply to the president himself.

The arguments weren’t compelling enough for the Justice Department to prevent an FBI search of Trump’s estate at Mar-a-Lago this month, and the affidavit in any case makes it clear that investigators are focused about more recent activities — long after Trump left the White House and lost the legal authorities that came with him. Even so, the letter suggests that a defense strategy anchored around presidential powers, a strategy employed during Special Counsel Robert Mueller’s Russia investigation when Trump was in fact president, could again be in play at the as the investigation progresses.

It’s perhaps unsurprising that Trump’s legal team is looking for ways to distinguish a former president from other citizens given the penalties imposed over the years for mishandling government secrets, including a nine-year sentence. sentenced to a former National Security Agency contractor who stored two decades of classified documents in his Maryland home.

But many legal experts doubt claims of such presidential power hold any weight.

“When someone is no longer president, he is no longer president. That’s the reality of the matter,” said Oona Hathaway, a professor at Yale Law School and a former attorney in the Office of the General Counsel for the Defense Department. “When you left the office, you left the office. You cannot claim that you are not subject to the laws that apply to everyone else.”

It is unclear from the affidavit whether Trump or anyone else could face charges for the presence of classified documents at Mar-a-Lago – 19 months after he became a private citizen – and officials from the FBI are investigating who removed the White House documents from the Florida estate and who is responsible for keeping them in an unauthorized location.

The FBI recovered 11 sets of classified documents during the August 8 search, and the affidavit released Friday says 184 documents bearing classified marks were also found in 15 boxes removed in January. The Justice Department, responding to a request from the Trump team for a special legal master to sort through the documents, said Monday that officials had completed their own review of potentially privileged documents.

Regardless of the outcome of this latest issue, the affidavit makes it clear that investigators are focused on potential violations of three criminal statutes, including a provision in the Espionage Act that criminalizes the willful retention or transmission of national defense information.

Another law punishable by up to three years in prison makes it a crime to deliberately remove, conceal or mutilate government documents. And a third law, up to 20 years in prison, covers the destruction, alteration or falsification of records in federal investigations.

The Espionage Act regarding the retention of national defense information has been the subject of multiple lawsuits. Past investigations have produced disparate results that make it difficult to predict the outcome of the Trump investigation. But there have been convictions.

Harold Martin, the former NSA contractor, pleaded guilty in 2019 to storing troves of classified information in his home, car and storage shed, including handwritten notes describing IT infrastructure classified by the NSA.

That’s why Trump’s legal team may be looking to play off his status as a former president.

When it comes to handling government secrets, there are indeed some differences that could possibly be considered: Presidents, for example, do not have to pass background checks to obtain classified information, they do not receive no security clearances to access information and they’re not formally ‘read’ about their secrets protection responsibilities when they leave office.

“There is no directive from the intelligence community that says how presidents should or should not be briefed on the documents,” said Larry Pfeiffer, a former CIA officer and senior director of the White House Situation Room. “We never had to worry about that before.”

The May 25 letter from Trump’s lawyer, Mr. Evan Corcoran, to Jay Bratt, head of the Justice Department’s counterintelligence section, describes Trump as the leader of the Republican Party and makes multiple references to him as former president.

He notes that a president has the absolute power to declassify documents, although he does not say – as Trump has claimed – that he did so with the documents seized from his home. It also says the “primary” law criminalizing the mishandling of classified information does not apply to the president and instead covers junior employees and officers.

The law cited in the letter, however, is not one of the three the search warrant lists as part of the investigation. And the Espionage Act at issue relates to “national defense” rather than “classified” information, suggesting that it may not matter whether the documents have been declassified or not.

Corcoran did not return messages seeking comment on Monday.

It’s possible “to imagine an honest mistake” or a president taking something sensitive without realizing it or because he needed it for a particular reason, said presidential powers expert Chris Edelson and Professor of Government at American University.

But that argument could be complicated by the fact that the documents were not earlier returned in their entirety by Trump to the National Archives and Records Administration and the FBI has come to suspect – correctly – that there still had classified information about the property.

“I think if he had just returned the documents right away, he would be in a much stronger position legally,” Edelson said.

Ashley Deeks, a University of Virginia law professor and former deputy legal adviser to President Joe Biden’s National Security Council, said in an email that the Trump team claims in the letter “appear to be more of a political argument than a legal argument”.

She added, “The President’s defense team appears to be trying to underscore the magnitude of the prosecution of this matter rather than articulating a clear legal defense.”


Associated Press writer Nomaan Merchant in Washington contributed to this report.

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