Since World War I, as a matter of national security, the federal government has employed specific protocols governing classified documents. All such documents are marked with an assigned classification level based on the level of risk to national security posed by their contents. Documents marked ‘Secret’ pose a risk to national security, while ‘Top Secret’ documents pose an ‘exceptionally grave’ risk to national security.
Classified documents are owned by the United States Government. Once they are classified, materials typically remain classified for up to 10 years, unless the original authority extends the classification to 25 years. Consistent with national defense, access to such documents may be had only on a “need-to-know” basis.
Sidestepping over one hundred years of national security protocol, former president Trump recently claimed on Fox that presidents can declassify documents ‘just by thinking about it’. Regarding the documents he took from the White House to Mar-a-Lago, he said, “I declassified everything.” Need-to-know, national security, and common sense limitations don’t apply; Trump apparently believes a former president can take anything he wants, including documents on nuclear weapons, biochemical developments, foreign surveillance, and the personal identities of US intel sources.
John Bolton, Trump’s former national security adviser, called Trump’s claims about declassifying all documents a “complete fiction,” while Bill Barr, Trump’s Attorney General, said Trump claiming to declassify everything would be “such an abuse… such recklessness that it’s almost worse than taking the documents” in the first place.
In a move guaranteed to delay, Trump sought a special master to review the more than 11,000 government documents he was keeping at Mar-a-Lago. Trump’s lawyers formally pled before the district court that Trump “could have” declassified the documents, without pleading that he actually did declassify, prompting a nationwide collective eye roll among members of the trial bar. A first year lawyer knows that if a defendant pleads, ‘I could have acted in self-defense,’ he didn’t.
What should have remained a boring document retrieval case has been made riveting by the artful range of mendacity displayed by the former president, who hid the fact that National Archives struggled to retrieve the documents for over a year and a half, claimed that the FBI had planted evidence, claimed that the seized documents were his own personal property, claimed that he didn’t pack the boxes yet still declassified everything in them, claimed that the documents might be subject to attorney-client privilege, claimed he had security camera footage of the search, then denied he had security camera footage when he was asked to produce it. Most remarkable of all, Trump, who calls himself “sir” and still refers to himself as “President Donald J. Trump” in legal pleadings, claims that a former president can assert executive privilege to block a current president from the nation’s classified documents.
In granting Trump’s requested special master, Trump-appointed Judge Aileen Cannon accepted Trump’s ‘I could have’ declassified defense without an eye roll. She ruled in Trump’s favor without requiring him to plead that he actually did declassify, without Trump pleading any facts or evidence of ‘executive privilege,’ and without conducting any ‘need-to-know’ security analysis whatsoever. In a ruling panned by legal scholars of both parties as specious, ‘ridiculous,’ and ‘untethered from the law,’ Cannon restricted the Department of Justice’s use of its own classified documents. She also asserted non-existent judicial power to impede an executive branch criminal investigation, contrary to the 8-0 Supreme Court ruling in United States v. Nixon, issued after Nixon tried to block access to the tapes with arguments similar to Trump’s ‘executive privilege’ claims.
On September 15, Cannon appointed the special master requested by Trump, Judge Raymond Dearie. Tasked with reviewing more than 11,000 seized documents, Dearie wasted no time. On September 20, Dearie skewered Trump’s “could have” defense, saying that Trump either declassified documents or he didn’t, and that if he wanted to plead that he did, he would need evidence.
The next day, an 11th Circuit Court of Appeals panel echoed Judge Dearie’s first impression, cast the argument as an obvious matter of national security, and, among other findings, ripped Cannon’s ruling as an abuse of discretion:
The documents at issue contain information “the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security… It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in “exceptionally grave damage to the national security.”
The appeals court did not feel the need to explain that any foreign or domestic adversary who pays the $200,000 admission fee can access Mar-a-Lago, a pay-to-play resort for the privileged with documented lax security.
The appeals court was puzzled by Judge Cannon’s failure to even consider whether Trump had a security-based need-to-know. “The district court made no mention … as to why or how (Trump) might have an individual interest in or need for the classified documents… For our part, we cannot discern why (Trump) would have an individual interest in or need for any of the one-hundred documents with classification markings.”
Concluding as to Trump’s specious “I could have” declassified defense, the appeals panel noted that “the record contains no (such) evidence,” and called the declassification argument “a red herring” “because declassifying an official document would not change its content or render it personal.” Even if Trump did declassify some of the documents, the panel ruled, it still “would not explain why he has a personal interest in them.” Apparently, in the 11th Circuit Court of Appeals at least, secure nuclear codes remain secure nuclear codes regardless of what a former president ‘thinks’ about them.
It may never be clear why Trump worked so hard to keep 100 classified federal documents in his personal possession, or what he intended to do with them. What is clear is the enduring importance of judicial review, exercised here to check a rogue district court judge willing to gamble national security on a sham ‘could have’ defense.
Judge Cannon ‘could have’ elevated the rule of law over partisan fealty. But she didn’t.
Sabrina Haake, a Gary attorney, is a freelance columnist for the Post-Tribune.
