An FBI document that was recently unsealed sheds light on the potential arguments that former President Donald Trump’s legal team is going to make in the case against the raid on Mar-a-Lago.
In a letter from one of Trump’s lawyers on May 25 that was attached to the search affidavit, it advances a broad view of presidential power given to the commander-in-chief. They believe there is an absolute authority given to the president to declassify whatever he wants, and it proposes that the “primary” law that governs the handling of U.S. classified information does not apply to the president.
These arguments were not persuasive for the Justice Department because they did not stop the FBI from searching Trump’s private residence. And the affidavit reveals that the investigators are focused on recent activity that has happened since Trump left the White House.
The letter gives a forecast of what will come in any legal matters in the future, the defense will surely focus on presidential powers. This was the strategy used during special counsel Robert Mueller’s Russia investigation.
This should come as no surprise that Trump’s legal team would distinguish the former president from other citizens. In the past, the penalties for mishandling government secrets include a nine-year prison sentence given to a former National Security Agency contractor. He stored two decades’ worth of classified documents at his Maryland home.
Some legal experts question whether this legal strategy will win in court.
Oona Hathaway, a Yale Law School professor and former lawyer in the Defense Department’s general counsel’s office, said, “When someone is no longer president, they’re no longer president. That’s the reality of the matter. When you’ve left office, you’ve left office. You can’t proclaim yourself to not be subject to the laws that apply to everyone else.”
The FBI recovered 11 sets of classified records in their August 8th raid on Mar-a-Lago. The Affidavit made public last week said that 184 documents that were classified were found in 15 boxes that were taken in January.
Trump has asked that a special master be appointed to review the documents, but the Justice Department said that their own review team, separate from the investigating team, has already reviewed the documents.
The affidavit clearly shows that the investigators are zeroing in on three potential violations of three felony statutes. This includes an Espionage Act provision that brings criminal charges to anyone who willfully keeps or transmits national defense information.
There is another possible felony that carries a three-year prison sentence for anyone who willfully removes, conceals, or mutilates government records. And the third felony carries a 20-year prison sentence, it covers the destruction, alteration, or falsification of records in any federal investigation.
The letter written in May from Trump attorney M. Evan Corcoran to Jay Bratt, the head of the Justice Department’s counterintelligence section, says that Trump was the leader of the Republican Party and references him as a former president. It states that a president has the “absolute authority” to declassify documents, but it does not clearly say that Trump did that to the documents in question.
Chris Edelson, a presidential powers scholar, and American University government professor, said that it was possible to “imagine a good faith mistake” or a president taking something sensitive without realizing it.
“I think if he had simply returned the documents right away, he’d be in a much stronger position legally,” Edelson said.
And Ashley Deeks, a University of Virginia law professor and a former deputy legal adviser to President Joe Biden’s National Security Council, said that she believes the Trump legal team is using more of a political argument than a legal one.
“The president’s defense team seems to be trying to point out the magnitude of proceeding with this case rather than articulating a clear legal defense,” Deeks said.
All eyes will be on that courtroom when these arguments are finally revealed.