Questions still linger after FBI agents seized boxes of allegedly classified materials from Mar-a-Lago, the Florida home of former President Donald Trump.
Last Friday, a U.S. district court judge unsealed the warrant that empowered FBI agents to seize from the premises any and all “physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071, or 1519.”
The laws cited as grounds for the search and seizure included statutes against the destruction, falsification, and theft of government documents. Most notably, 18 U.S.C. §§ 793 deals with possible charges related to espionage, specifically the “gathering, transmitting or losing” of “defense information.”
Little is known about the materials taken from Mar-a-Lago. They are mainly nondescript in the warrant, except for Roger Stone’s grant of clemency and “info re: President of France.” Beyond that, a receipt of seized items provided to Trump’s representatives by the FBI list boxes of materials labeled “confidential,” “secret,” and “top-secret.”
Critics of the former president, such as Jonathan Chait at the New York Intelligencer, dismissed concerns about the raid saying, “The reason Donald Trump is the first former president to be treated like a criminal is that he is the first former president who is a criminal.”
Still, some analyses have indicated that the law is much less certain, pointing to the constitutionally-granted power to declassify supposedly inherent in the position of president.
The claim that presidents have an almost ubiquitous ability to declassify information was rated as mostly true by even the left-leaning website Politifact in 2017 after critics claimed that Trump had inadvertently “revealed highly classified information.”
At that time, the director of the Federation of American Scientists Project on Government Secrecy explained that a president is not “obliged to follow any procedures other than those that he himself has prescribed … And he can change those.”
Of significance is the 1988 U.S. Supreme Court ruling in Navy v. Egan, which held that the president’s “authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”
Mike Davis, former chief counsel for the U.S. Senate Committee on the Judiciary and law clerk to Supreme Court Justice Neil Gorsuch, recently claimed that the president has unilateral constitutional declassification authority and is not bound by congressionally established procedures.
“The president has the inherent constitutional power to declassify any record he wants,” Davis claimed, “in any manner he wants, regardless of any otherwise-pertinent statute or regulation that applies to everyone else.”
Others have pointed to allegedly contradicting judicial opinions, such as the U.S. appeals court decision in New York Times v. Central Intelligence Agency (2020), which stated that “declassification, even by the President, must follow established procedures.”
Still, the decision clarifies on the same page that the court declined to rule upon what was or was not declassified because “such determinations encroach upon the President’s undisputedly broad authority in the realm of national security.”
For his part, Trump insisted, “Number one, it was all declassified. Number two, they didn’t need to ‘seize’ anything. They could have had it anytime they wanted without playing politics.”