Former President Donald Trump claimed on a far right radio show on Thursday that he had given “verbal orders” to declassify the documents that were found at his Mar-a-Lago estate last month.
When Host Hugh Hewitt asked if he issued such orders verbally while president, Trump said that was a “correct” assessment, even though it conflicts with existing processes for how documents should be declassified.
“I have the absolute right to declassify, absolute,” Trump said. “A president has that absolute right, and a lot of people aren’t even challenging that anymore.”
Eighteen of Trump’s former staffers, including high-ranking aides, have disputed Trump’s claims that he gave a “standing order” to declassify materials he took from the White House, with some describing the claim as “bullshit.”
There is no evidence that Trump declassified any of the material that ended up at Mar-a-Lago beyond his own statements and those of his allies, which have been less than reliable in the past. The former president has not produced any physical evidence backing up his claims.
It’s unlikely that Trump would have been able to legally declassify documents through a verbal order alone, Bradley P. Moss, a national security lawyer, said on Twitter.
Trump’s claim that the president is the ultimate authority on the classification status of documents “is true,” Moss conceded. “BUT there is case law from the Trump era clarifying how, in the view of the courts, a mere tweet or verbal statement was not enough to actually declassify a record. Further action was required.”
Importantly, while Trump is defending his actions on radio programs and other media by saying he declassified the documents that were found at his estate, his lawyers have not yet presented that argument in court, according to reports. No claims of declassification appear in any of the filings his legal counsel has made regarding the improper removal of classified documents.
In some ways, the classification status of these documents is a red herring, because with regard to the law it doesn’t matter.
The Espionage Act, a law that the Department of Justice (DOJ) cited in the search warrant that was served on Trump’s Mar-a-Lago estate early last month, does not require that mishandled documents are classified in order for someone to be prosecuted; all the law is concerned with is whether government documents are used or mishandled in a way that could jeopardize the country’s interests abroad.
Likewise, the Presidential Records Act does not include a stipulation that the documents be classified. The preservation of government documents is all that matters, and presidential records — which belong to the government rather than former presidents — must be retained by the National Archives, that act states.