Trump’s new argument on the Mar-a-Lago files is both weak and insufficient

On Aug 15, 2022

It’s not surprising that Donald Trump’s latest effort to deflect criticism over his possession of White House documents at Mar-a-Lago was routed through writer John Solomon. Solomon has for years been a favored conduit for Trump-friendly confirmation. His intermingled relationship with former New York mayor Rudy Giuliani helped propel the rhetoric that Trump used as a defense in his first impeachment trial — rhetoric that was later debunked. Trump trusts Solomon to document the investigation into Russian interference, which says a lot.

So it was Solomon, too, who on Friday night was fed the new rationale for why it was A-okay for Trump to retain a document cache near the swimming pool at his resort. During an interview on Sean Hannity’s Fox News program, Solomon read a statement that Trump’s team had sent him.

“As we can all relate to, everyone ends up having to bring home their work from time to time,” Solomon read. “American presidents are no different. President Trump, in order to prepare the work for the next day, often took documents, including classified documents, to the residence. He had a standing order … that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.”

Solomon later wrote an article about this claim for his bespoke website. In that article — likely unintentionally — he revealed one of the two flaws with this argument: that there’s no evidence it’s true. Sean Hannity, you may not be surprised to hear, did not spend a lot of time testing its credibility on-air; it seems unlikely that he will opt to clarify the reality during his show on Monday evening.

The other flaw, of course, is that this assertion about a standing order is largely irrelevant to the legal question at hand.

The question of the validity of the order is itself twofold: Can such an order exist, and did such an order exist?

The “can” question has been the subject of some significant chatter since the FBI’s search of Mar-a-Lago one week ago, a discussion that has made clear how the rigors of the classification system — like so much else in government — rely on norms of executive behavior that Trump often disregarded. A president does have broad declassification authority, but Trump regularly stretched the boundaries, as when he mentioned classified information to Russian officials in May 2017.

There were also times when Trump publicly indicated that material would be declassified … only to have his lawyers and staff walk the claim back. Journalist Jason Leopold noted how White House Chief of Staff Mark Meadows in 2020 responded to a request for material “declassified” by Trump in a tweet: Trump didn’t really mean to declassify all of it.

Then there was a 2018 lawsuit from the New York Times arguing that Trump had inadvertently declassified the existence of a program by mentioning it; Trump’s lawyers disagreed.

“To prevail in any claim of declassification,” the attorneys wrote in a filing, the Times had to show “first, that President Trump’s statements are sufficiently specific; and second, that such statements subsequently triggered actual declassification.” Otherwise, the documents weren’t declassified. After all, they continued: “Declassification, even by the President, must follow established procedures.”

Which a blanket “if I take this upstairs, it’s declassified” order likely wouldn’t meet.

But, again, there’s no evidence that such an order was in place. Solomon, seemingly eager to boost Trump’s position, interviewed a former administration official who could offer no more than a lack of denial about such an idea: “I don’t know anyone or anything that disputes that,” Solomon was told of the alleged order, to his apparent complete satisfaction.

Not too long after, someone disputed that. Appearing on MSNBC’s “Morning Joe” on Monday morning, former Trump national security adviser John Bolton denied knowledge of such an order.

“If he did take materials out of a safe space to the residence,” Bolton added, “it would have to be documented what they were — each document, so that people would know what had been declassified.” He knew of no such documentation, he said.

This is Schrödinger’s declassification. Everything is both classified and declassified until Trump is asked about it, at which it settles into whichever position is most useful for Trump. A government program he shouldn’t have talked about? Still classified. A document sitting in a box at Mar-a-Lago? Declassified. It’s government security through vibes.

But then we come to our original second point: In broad strokes, this doesn’t matter.

The Times’s Charlie Savage (who pointed out that Times lawsuit) made this point in a useful piece over the weekend. If you look at the three statutes the Justice Department believes Trump might have violated — 18 U.S. Code Sections 793, 1519 and 2071 — you’ll see no mention that the documents being retained in potential violation of the law need to have been classified documents.

Section 793 deals with “information respecting the national defense” and provides an exhaustive list of things that qualify (information concerning “aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard,” etc.), but it doesn’t stipulate that the information must be secret. Section 2071 centers on anyone who “takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office.”

Where Trump’s argument might aid his case is with Section 1519. It centers on efforts to impede or obstruct investigations by falsifying records and might apply to Trump’s response to the government’s efforts to get documents back. In June, a lawyer for Trump attested that Trump was no longer in possession of classified material. The FBI removed classified material, according to the manifest it provided to Trump’s team last week, potentially violating Section 1519 — unless that material had been Schrödingered into nonclassified status.

Trump’s arguments are malleable and situational — reinforcing that they are often insincere. Over the past seven days, he has claimed both that the classified material had been declassified and that maybe the FBI was going to plant evidence on him, contradictory assertions that are simply options in the doubt-elevation buffet Trump traditionally offers his political customers.

Solomon and Hannity filled their plates and sat down to eat. Hundreds of thousands of people tuned in to Fox News to watch.