Mar-a-Lago: Why an appeals court says Trump’s claim he declassified documents is a ‘red herring’


Former President Donald Trump’s vague claim that he may have unclassified documents taken to Mar-a-Lago is running into a brick wall, just like the way the court is probing the discovery.

The US 11th Circuit Court of Appeals – in a unanimous opinion from an appellate panel that included the two Trump appointees – said any uncertainty over whether the more than 100 documents were still classified was a “red herring”. , as permitted by the Justice on Wednesday. The criminal investigation of the department against him will be resumed.

Serving as a split screen for the 11th Circuit ruling was an interview Trump gave to Sean Hannity of Fox News, where he tripped down on the notion that he had declassified, or could be declassified, into question. Document.

“If you are the President of the United States of America, you can declassify it by calling it unclassified,” Trump said. “Even if just thinking about it because you’re sending it to Mar-a-Lago or wherever you’re sending it.”

Trump’s sweeping claims go far beyond the ambiguous way in which his lawyers have cast doubt on whether the documents found in the search were, in fact, still classified. In court, his team swiftly refrained from saying that Trump himself made the documents public and opposed the invitation that he do so.

This dynamic was not lost on the 11th Circuit. The court highlighted the lack of evidence showing the documents as declassified, even as the court determined whether the material was declassified was irrelevant to the department’s bid to revive its investigation.

Key to the dispute before the appeals court was whether the material was Trump’s property that had a level of personal significance that would justify keeping him out of the hands of the Justice Department.

Trump’s argument about why those materials should be withheld from investigators was so far-fetched, that some court observers were surprised that his claims came up for discussion in the Court of Appeals.

Steve Vladeck, a CNN legal analyst and professor at the University of Texas School of Law, said the 11th Circuit “was responsible for both the determination of the issue and the issue itself.” The court was saying, “It’s not the right way to think about it, but if it was, Trump would have lost.”

US District Judge Eileen embraces Trump’s claims Cannon, which stalled a DOJ criminal investigation of the documents while a so-called special master reviews them, has attracted criticism from a broad team of legal experts.

The appeals court, which was asked by the Justice Department to intervene, explicitly noted that Cannon did not explain why the documents in question would be material in which Trump would have a personal interest.

“For our part, we cannot understand why the plaintiff would have a personal interest or need in any of the hundred documents with classification marks,” the appeals court said.

The appeals court’s opinion included a clarification of the classification marker sign, citing an executive order that established that classified documents are “under the control of the United States Government, produced by, for, or owned by … ”

The appeals court said declassifying those documents would not alter their content or make it personal.

“So even if we assume that the plaintiffs have declassified some or all of the documents, that would not explain why they have a personal interest in them,” the 11th Circuit wrote.

“What they’re saying here is that Trump’s claim for the return of documents changes whether the documents are personal to him — his medical records, for example, if they were confiscated, or perhaps attorney clients. -privilege,” Paul Rosenzweig, national security law expert, said Thursday on CNN’s “At This Hour with Kate Bolden.”

“But classified information by its nature – even if it has been declassified – still remains official information and is not personal to the President of the United States. And he cannot change it, even in his own mind, by simply saying, said Rosenzweig, who is a former prosecutor and also works at the US Department of Homeland Security.

According to Brandon van Graak, former attorney for the National Security Division at the Justice Department, the 11th Circuit was able to act quickly to resolve the dispute because the Justice Department turned to the Court of Appeals with a very narrow and explicit request.

“The only issue was whether there was any reason the DOJ could not mark these documents as classified and not use them,” van Graak said. “Legally it was so clear that it could not and should not be banned”

Even when the appeals court said it did not matter whether the documents were declassified, the panel sought to set aside the argument put forward by the Trump team to question the status of the documents’ classification. went to length.

Wednesday’s opinion came after Judge Raymond Deary, the senior judge who was tapped as Special Master, expressed deep doubts at Tuesday’s hearing about how the Trump team was taking up the issue of declassification.

The appeals court pointed out that there is “no evidence in the court records that any of these records were declassified.” The panel also noted how Trump’s lawyers had explicitly objected to a request from Dearie to disclose what was specifically done among the confiscated material.

The 11th Circuit additionally created a chain of events that brought the case to the Court of Appeals. In that narrative, the panel highlighted facts that further reduced Trump’s reliance on the notion that he may have declassified the documents.

Its opinion recalled the previous two installments of documents obtained from a Florida resort, including material with classified markings, as well as the Trump team’s failure to take steps to prevent the FBI from accessing the first installment, which was published in January at the National Archives. was retrieved by. Nor did Trump claim any privileges when his representatives produced documents in June, which they said were placed in compliance with a grand jury subpoena seeking documents marked as classified.

“This discussion was a symbol of how much public opinion is up for,” Vladek said, adding that the appeals court also strengthened his argument for the possibility of an appeal in the US. Supreme court.

In addition to these details about the documents, the 11th Circuit opinion placed significant weight on a declaration by the FBI detailing the national security risks posed by withholding criminal investigations in 100 documents.

“They spend a great deal of time formulating the Justice Department issue and adopting a statement of facts that demonstrate widespread concern about the conduct on this issue,” van Graak said.

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