The Department of Justice in a midnight filing on Tuesday opposed Donald Trump’s motion for a “special master” to review the FBI’s seized documents for potential attorney-client privileged and executive privileged documents. It included in Attachment F of its filing a now-infamous photo showing “top secret” documents strewn all over the floor at Mar-a-Lago.
Former President Donald Trump had the ‘perfect’ response to the FBI’s gotcha photo of “top secret” documents scattered all over his Mar-a-Lago floor after the bureau’s raid.
“Terrible the way the FBI, during the Raid of Mar-a-Lago, threw documents haphazardly all over the floor (perhaps pretending it was me that did it!), and then started taking pictures of them for the public to see,” Trump said.
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“Thought they wanted them kept Secret!” he added. “Lucky I Declassified.”
Former Deputy DNI Kash Patel explained in an August interview that Trump had a “standing order” that the documents he took with him to Mar-a-Lago were to be considered “declassified.” Furthermore, the GSA had allegedly “mistakenly packed some boxes and moved them to Mar Lago.”
“The GSA has said they did it and they made a mistake,” he added. “And that should have been really the end of it. It should have been a cordial subpoena, where at most where they said, ‘okay, we just need this and we’ll get the rest back to you.’ I mean, President Obama and President Clinton still have classified materials in their possession in their home, but they have not released to this day per the National Archive.”
Despite reports in the aftermath of the FBI’s unprecedented raid on a former president that it was an urgent matter of national security, the New York Times appears to concede that the classification status of the documents are not at-issue regarding the alleged crimes Trump purportedly committed, as stated in the search warrant.
No documentation has come to light confirming that Mr. Trump declassified the material, and the potential crimes cited by the Justice Department in seeking the search warrant for Mar-a-Lago would not hinge on the classification status of the documents.
The Wall Street Journal, in a recent editorial on the matter, corroborates the New York Times’ tacit concession that there is no ‘there, there’ in terms of Donald Trump having allegedly committed a perfidious crime affecting national security.
Nothing in the PRA suggests that the former president’s physical custody of his records can be considered unlawful under the statutes on which the Mar-a-Lago warrant is based. Yet the statute’s text makes clear that Congress considered how certain criminal-law provisions would interact with the PRA: It provides that the archivist is not to make materials available to the former president’s designated representative “if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives.”
Nothing is said about the former president himself, but applying these general criminal statutes to him based on his mere possession of records would vitiate the entire carefully balanced PRA statutory scheme. Thus if the Justice Department’s sole complaint is that Mr. Trump had in his possession presidential records he took with him from the White House, he should be in the clear, even if some of those records are classified.
The Supreme Court has strongly backed presidential classification authority, such as in Department of Navy vs. Egan. This is all a politically timed distraction to draw Americans’ attention away from the Democrats’ destructive policies ahead of the 2022 midterm elections.
OPINION: This article contains commentary which reflects the author's opinion.