Former President Donald Trump's long history of imprudent tweets may have come back to haunt him-by strengthening any Justice Department case that the documents he improperly kept after leaving the White House were still indeed top secret.
"It is poetic how much of this litigation-were he to be charged-will be determined by his own actions," said Kel B. McClanahan, a national security lawyer who teaches at George Washington University.
That's because of the way Trump while president tweeted many promises to declassify documents, then retreated and used the Department of Justice to vigorously defend the sanctity of the way the government classifies documents. He has essentially trapped himself, as he now faces an FBI investigation into whether he put the American people's security at risk by mishandling government secrets and potentially violating the Espionage Act.
Essentially, Trump's freewheeling style on Twitter forced the administration to take a harder stance on just what it means to declassify a document-forcing the government to emphasize the rigorous, multi-step nature of the bureaucratic process. He can't now say it merely takes a wave of his hand.
'When the president does it, that means that it's not illegal'
In the aftermath of the FBI's search last Monday at Mar-a-Lago, the former president and his allies have fallen back on the defense that the documents weren't really sensitive anymore.
On Friday, Trump took to his own social media network, Truth Social, to lay out his claim.
"Number one, it was all declassified," he said. "Number two, they didn't need to 'seize' anything. They could have had it anytime they wanted without playing politics and breaking into Mar-a-Lago."
Over the weekend, Trump reiterated that claim while complaining about "the early morning RAID on… the secured and locked storage area where unclassified documents were safely held."
His loyal bulldog Kash Patel-the MAGA lawyer who Trump stationed at the Department of Defense and controversially sought to make a top official at CIA-has taken to conservative media outlets to expound on the same claim.
During an interview with Fox News host Maria Bartiromo on Sunday, Patel said the president "can literally stand over a set of documents and say 'These are now declassified.'"
But Trump might run into some problems, thanks to the legal precedent created by the many sudden crises he caused himself while in office, when he routinely employed hasty social media posts and press releases to lash out at the CIA or FBI.
Every time Trump publicly criticized a secretive mission, journalists were right behind him, demanding access to government records the president had just made public by accident. When those public records requests failed, news organizations were forced to sue for government violations of the Freedom of Information Act. In every case, the DOJ scrambled to somehow justify keeping that information secret.
"Trump was very good at doing really insane things, knowing that the bureaucracy at the DOJ was going to defend him. He forced them into these lawsuits. He forced them to defend indefensible things. And because they were the DOJ, they won," McClanahan explained.
One example came in October 2020, when Trump tweeted that he "fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. Likewise, the Hillary Clinton Email Scandal. No redactions!"
The surprise announcement seemed to bolster a long-running legal fight that investigative reporter Jason Leopold, then at BuzzFeeds News, had with the DOJ and FBI to get access to documents from the Trump-Russia investigation led by Special Counsel Robert Mueller.
"The court sided with the government and said, 'We are not ordering disclosure. The official process wasn't followed,'" summarized Bradley P. Moss, a national security lawyer who sometimes advises The Daily Beast on public records requests.
A second example came from the fallout of a boldly worded statement in September 2018 from Sarah Huckabee Sanders, the White House press secretary at the time. Trump was furious at the way his own federal law enforcement had investigated a campaign adviser, Carter Page, and he wanted to expose every aspect of the operation.
As a result, Sanders issued a press release claiming that Trump had "directed the Office of the Director of National Intelligence and the Department of Justice (including the FBI) to provide for the immediate declassification of the following materials: (1) pages 10-12 and 17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page." The administration released 412 pages, but the information contained in 21 of those pages remained hidden behind redactions.
When investigative reporter Brad Heath, then at USA Today, sought those records with a FOIA request, he also ran into a brick wall. The Trump administration refused to turn them over. Heath and the James Madison Project sued to get access to the documents, and once again, the matter fell on a technicality. U.S. District Judge Amit P. Mehta ruled that, despite the power of the president over the restriction of public access to government secrets, mere White House declarations aren't enough to make something declassified.
The judge pointed to a signed court declaration, this time from high-ranking DOJ employee G. Bradley Weinsheimer, explaining that "DOJ did not receive at any time a declassification order related to the materials remaining at issue in this case."
But the decisive case came following Trump's July 2017 tweet complaining about the way journalists were covering the troubles plaguing the CIA as it armed and supported pro-democracy rebels in Syria.
"The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad," Trump tweeted at the time.
The New York Times used that tweet to FOIA records, claiming that Trump had effectively declassified information about the secretive spy mission. When the DOJ countered that a mere tweet wasn't enough, the issue made its way before a federal judge and an appellate panel.
"Declassification cannot occur unless designated officials follow specified procedures," the appellate court ruled in July 2020.
Moss said that sealed the deal.
"Even the president has to follow formal process for declassification. It doesn't matter what he says unless there's follow-through," Moss told The Daily Beast. "These are the only guideposts we have. If Trump ultimately loses in a criminal case, it will be because of the precedent set forth in the FOIA cases brought forth in his administration."
Any potential federal prosecution of the former president will have to examine whether Trump actually followed through on any alleged order he made to have documents declassified. National security lawyers told The Daily Beast any criminal case would hinge on Trump proving that his deputies received the order-but somehow didn't follow through.
Even Patel acknowledged this is more involved than waving a magic wand.
"We have to go through a rigorous process to do that procedurally," he acknowledged on Fox News over the weekend. "But the president is and always [has] been the unilateral classification authority to classify and declassify. If he says something is declassified, that's it. Then it's declassified."
But because declassification is such a bureaucratic process, much of the evidence of what actually went down would already be accessible to the DOJ. Any document marked classified can only be declassified after the respective federal agency has implemented the change-and that may require an agency assessment of whatever potential damage may result by making the information public. Spies could be outed. Secret intelligence-gathering missions could be compromised. Ongoing investigations could be ruined.
"If a president declassifies something in a forest and no one hears it, is it really declassified?" McClanahan asked.
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