The National Archives and Records Administration (NARA) is planning to hand over records to special counsel Jack Smith and other Department of Justice (DOJ) investigators indicating that former President Donald Trump and his advisers knew he couldn’t, as president, unilaterally declassify government documents.
Multiple sources have indicated to CNN that the government agency has informed Trump that they will soon hand over 16 documents showing that he and his surrogates understood a process existed in order to declassify materials with classified markings on them. CNN has also obtained a letter from acting Archivist Debra Steidel Wall, addressed to Trump himself, about the impending transfer of those documents to the DOJ.
“The 16 records in question all reflect communications involving close presidential advisers, some of them directed to you personally, concerning whether, why, and how you should declassify certain classified records,” Wall’s letter says.
Wall also noted in her letter that Smith is “prepared to demonstrate with specificity to a court, why it is likely that the 16 records contain evidence that would be important to the grand jury’s investigation.”
The records are set to be given to the DOJ on May 24.
In addition to showcasing that Trump is wrong about how classified documents can be declassified — a key component to his public defense so far is that he’s purportedly done nothing wrong in removing such documents from the White House to his Mar-a-Lago property — CNN reports that the records may also provide insight into what his intentions were with the documents.
Trump left the White House in 2021 with thousands of government documents still in his possession. Federal law mandates that such documents must be handed over to NARA, as they are the property of the U.S. government, not the personal property of presidents.
NARA spent almost a year trying to negotiate with Trump to return the documents to the agency, with him only agreeing to do so after they threatened congressional involvement in the matter. Upon their first round of document retrieval, which took place in January 2022, NARA found that documents with classified markings were among those at his Palm Beach, Florida, residence, and informed the DOJ about it soon afterward.
In late spring of that year, DOJ investigators subpoenaed Trump to turn over the remaining classified documents. After allowing those investigators to go to his property, Trump’s lawyers signed an affidavit, on his behalf, attesting that he had turned everything over. After evidence surfaced that he had lied about doing so — including evidence showing that he had ordered Mar-a-Lago staffers to move classified documents after the subpoena was served — the FBI conducted an unannounced search of the property in August, while Trump was in New York, uncovering additional classified documents.
Trump, as recently as this month, has tried to claim that he had the power, as president, to automatically declassify government documents with classified statuses through the simple act of removing them from the White House.
“I had every right to under the Presidential Records Act. … I was there and I took what I took and it gets declassified,” he said at a town hall meeting hosted by CNN.
That claim has been fact-checked many times, and has been found to be false, as the Presidential Records Act doesn’t, in fact, allow outgoing presidents to take such actions. A stronger defense for Trump, if he indeed declassified documents, would be showing proof of him doing so, as records of declassification would exist if that had happened. So far, he’s not done so.
Legal experts and observers have responded to the latest development by saying Trump’s defense has essentially been deflated.
“The notion that Trump sincerely thought he could wave his hand and magically deem documents declassified seems to be taking a major hit,” said Daily Beast senior columnist Matt Lewis, reacting to the news.
“It has never been a serious legal claim that Donald Trump could declassify documents whenever he wanted without any process, but reports that prosecutors obtained documents showing Trump and advisors knew well the actual process could be very damaging,” tweeted Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington.
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