[ The former president’s hoarding of classified documents is the
least complicated of his scandals—and it’s also proving the
hardest to dodge. If that were not enough, there is the Al Capone-like
tax evasion.]
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TRUMP’S LEGAL DEFENSE IN THE MAR-A-LAGO CASE IS CRUMBLING  
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Matt Ford
September 20, 2022
The New Republic
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_ The former president’s hoarding of classified documents is the
least complicated of his scandals—and it’s also proving the
hardest to dodge. If that were not enough, there is the Al Capone-like
tax evasion. _

,

 

By now, the American people are no stranger to former President Donald
Trump’s various legal entanglements. Sometimes his predicaments are
complicated or convoluted affairs. The Russia investigation, for
example, required Americans to navigate a tangled web
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second-tier political operatives and Russian oligarchs. Trump’s
first impeachment trial introduced Americans
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a wide range of Ukrainian political figures, past and present. Even
the January 6 hearings revolve around a motley crew
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partisan hacks and fringe legal figures.

Trump’s classified document scandal is, by comparison, easy to
understand. The FBI searched Mar-a-Lago last month and found a trove
of classified documents there. That material was not supposed to be
there, especially since Trump is no longer president. There are no
indications that Trump has a good-faith defense to raise—_Oops,
sorry, these accidentally fell in when I was leaving the White
House!_—because he and his legal team actually spent several months
resisting returning them to the federal government, after which they
made false claims that they had already returned them.

I am not suggesting that this is a slam-dunk prosecution, of course,
but at least Americans don’t have to learn a long list of names this
time. The former president and his legal team have struggled to
explain the situation to their supporters or adequately defend
themselves. There are signs that one of their only plausible
defenses—that Trump had actually declassified the documents in
question while he was still president—is finally about to be put to
the test by the courts. And there are strong signs that, like so many
of Trump’s other claims, this one won’t hold up to scrutiny.

Trump’s legal team has walked a tightrope of sorts on
declassification in its filings with Judge Aileen Cannon, the Trump
appointee for whom he forum-shopped earlier this month. On one hand,
his lawyers have strongly hinted that the classified material that was
seized by the FBI might be declassified. On the other hand, they have
not actually come out and said outright that Trump declassified
anything before taking it to Mar-a-Lago. One idea floating out in
Trumpworld is that Trump had some sort of standing rule that anything
brought to his residence in the White House was automatically
declassified. That could conveniently exculpate him for any criminal
mishandling of classified materials right now if it’s true. Cannon,
as far as I can tell, never tried to get a clear answer from Trump’s
lawyers about this.

Let’s assume for a minute that Trump is telling the truth, and this
standing order did exist. Such an order would be an extraordinarily
haphazard way to approach classified materials. It would be a scandal
in and of itself if national secrets lost their legal protections
simply because the president wanted to read them in bed.

 

It would be a scandal in and of itself if national secrets lost their
legal protections simply because the president wanted to read them in
bed.

Overclassification is a perennial problem with the federal government.
But it is safe to say that at least some of what reaches the president
is classified for a very good reason. It might involve nuclear secrets
about the U.S. arsenal or foreign capabilities, as some reports
claimed. It might allow foreign countries to uncover sources and
methods used by U.S. intelligence agencies. It might even let those
countries identify U.S. assets that operate clandestinely in foreign
governments or militaries.

John Bolton, who served as Trump’s national security adviser, said
he had never heard of such an order. Neither had Bill Barr, Trump’s
second and final attorney general, who has been broadly critical of
Trumpworld’s defenses since the Mar-a-Lago raid. “I, frankly, am
skeptical of this claim that ‘I declassified everything,’”
he said in a Fox interview
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“I think it’s highly improbable.” Barr went on to criticize
Trump for his claimed actions. “If in fact he sort of stood over
scores of boxes, not really knowing what was in them, and said, ‘I
hereby declassify everything in here,’ that would be such an abuse,
and that shows such recklessness that it’s almost worse than taking
the documents,” the former attorney general said.

Cannon appointed a special master last week, Judge Raymond Dearie, to
sort through the executive privilege claims and some other issues
surrounding the documents. According to court filings, Dearie has
asked the two sides to brief him on some of the legal aspects of the
case. One of them is apparently about a Rule 41 motion, which involves
the return of unlawfully seized property and whether it is more
appropriately filed with the judge who signed off on the original
search warrant. In a court filing earlier this week
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Trump’s lawyers tried to nix that by arguing that Cannon already
implicitly considered the legal question.
 

Judge Raymond J. Dearie (New York Times photo)
The other hint that Trump’s lawyers gave about what Dearie is
interested in is more tantalizing. “The Draft Plan requires that the
Plaintiff disclose specific information regarding declassification to
the Court and to the Government,” Trump’s lawyers argued. “We
respectfully submit that the time and place for affidavits or
declarations would be in connection with a Rule 41 motion that
specifically alleges declassification as a component of its argument
for return of property. Otherwise, the Special Master process will
have forced the Plaintiff to fully and specifically disclose a defense
to the merits of any subsequent indictment without such a requirement
being evident in the District Court’s order.”

Again, Trump and his allies have spent the last few weeks claiming
that this whole case is a sham and a nothingburger because Trump
declassified all those documents. But when given the opportunity,
Trump explicitly declined to introduce evidence that he declassified
these documents. Why? Because it might be a defense against a future
indictment.

To say this is puzzling is an understatement. I do not understand why
Trump would not want to give information to the court that might
exculpate him of criminal wrongdoing when given the opportunity to do
so. If the police arrested you for grand theft auto, and you had
paperwork that proved you owned the car in question, why wouldn’t
you show it to a court at the earliest available opportunity? It’s
not like evidence is something you can only use once.

 

If the police arrested you for grand theft auto, and you had paperwork
that proved you owned the car in question, why wouldn’t you show it
to a court at the earliest available opportunity?

A cynical observer (or perhaps just someone who is passably familiar
with Donald Trump) might wonder if this means that Trump doesn’t
actually have proof that he ever declassified any of these materials.
It might even mean that he never actually declassified them at all and
that he’s simply muddying the waters here to avoid conceding that he
had classified materials after leaving office that he had no right to
keep. This would also explain why Trump’s lawyers have carefully
danced around whether any of the seized materials were actually
declassified. It is not generally illegal to lie to the American
people during Fox News interviews. But it can be sanctionable for an
attorney to make false attestations to a court while representing
their client.

During a hearing on Tuesday afternoon, Dearie did not sound persuaded
by the Trump legal team’s evasions. At one point, he noted that the
federal government had already provided “prima facie evidence”
that the materials were classified by noting that they were marked as
such. “As far as I’m concerned, that’s the end of it,” he
reportedly added. He also noted that while they can decline to offer
proof at this stage, Trump’s lawyers can’t, as Dearie put it,
“have your cake and eat it.” That may be true in a legal sense and
a metaphysical one. But it certainly won’t stop Trump from trying.

_[MATT FORD is a staff writer at The New Republic. Matt Ford @fordm
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* Donald Trump
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* Jan. 06
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* Capitol coup
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* Mar-a-Largo
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* espionage
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* tax evasion
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* IRS
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* income tax
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* Al Capone
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* Latisha James
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* GOP
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* MAGA
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* Republican Party
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* conspiracy
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