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Trump team promotes broad view of presidential powers over classified documents

WASHINGTON (AP) — A newly opened fbi document on the investigation at Mar-a-Lago not only offers new details about the investigation, but also reveals clues about the arguments that former President Donald Trump’s legal team intends to present.

A May 25 letter from one of his lawyers, attached as evidence to the search affidavit, presents a broad view of presidential power, asserting that the commander-in-chief has absolute authority to declassify whatever he wants, and also that the “ Main The law governing the handling of US classified information simply does not apply to the president himself.

The arguments were not persuasive enough for the Justice Department to prevent an FBI search of Trump’s property at Mar-a-Lago this monthand the affidavit in any case makes it clear that investigators are focusing on more recent activities, long after Trump left the White House and lost the legal authorities that came with it.

Still, the letter suggests that a defense strategy anchored around presidential powers — a strategy employed during special counsel Robert Mueller’s Russia investigation when Trump was actually president — may be back in play as the war progresses. research.

Perhaps not surprisingly, Trump’s legal team would seek ways to distinguish a former president from other citizens given the penalties imposed over the years for mishandling government secrets, including a nine year prison sentence Issued to a former National Security Agency contractor who stored two decades of classified documents in his Maryland home.

But many legal experts doubt that claims of such presidential power carry weight.

“When someone is no longer president, they are no longer president. That’s the reality of the matter,” said Oona Hathaway, a professor at Yale Law School and a former attorney in the Defense Department’s office of attorney general. “When he leaves office, he leaves office. You cannot proclaim yourself not subject to the laws that apply to everyone else.”

It’s unclear from the affidavit whether Trump or anyone could face charges for the presence of classified records at Mar-a-Lago, 19 months after he became a private citizen, and FBI officials are investigating who removed the records. from the White House to the state of Florida and who is responsible for holding them in an unauthorized location.

the fbi retrieved 11 classified record sets during the August 8 searchand the affidavit made public on Friday said 184 documents with classified markings They were also found in 15 boxes recalled in January. The Justice Department, responding to a request by the Trump team for a special legal master to classify the materials, said monday that officials had completed their own review of potentially privileged documents.

Regardless of the outcome of that latest issue, the affidavit makes clear investigators are focused on possible violations of three felony statutes, including a provision of the Espionage Act that criminalizes the willful withholding or transmission of national defense information.

Another law that is punishable by up to three years in prison makes it a crime to deliberately remove, hide or mutilate government records. And a third law, which carries up to 20 years in prison, covers the destruction, alteration or falsification of records in federal investigations.

The statute of the Espionage Act regarding the withholding of national defense information has figured in multiple prosecutions. Previous investigations have produced disparate results that make it difficult to predict the outcome of the Trump investigation. But there have been convictions.

Harold Martin, the former NSA contractor, pleaded guilty in 2019 to storing troves of classified information inside his home, car and storage shed, including handwritten notes describing the NSA’s classified computing infrastructure.

That’s why Trump’s legal team may try to highlight his status as a former president.

When it comes to handling government secrets, there are a few differences that could possibly be considered: Presidents, for example, don’t have to pass background checks for classified information, aren’t given security clearances to access intelligence, and aren’t they formally “read” their responsibilities to safeguard secrets when they leave office.

“There is no directive from the intelligence community that says how presidents should or should not be briefed on materials,” said Larry Pfeiffer, a former CIA officer and senior director of the White House Situation Room. “We’ve never had to worry about that before.”

The May 25 letter from Trump’s attorney, M. Evan Corcoran, to Jay Bratt, head of the Justice Department’s counterintelligence section, describes Trump as the leader of the Republican Party and makes multiple references to him as a former president.

He points out that a president has the absolute authority to declassify documents, although he does not actually say, as Trump has claimed, that he did so with the records seized from his home. He also says the “primary” law criminalizing the mishandling of classified information does not apply to the president and instead covers employees and subordinate officials.

However, the statute the letter cites is not among the three that the search warrant lists as part of the investigation. And the Espionage Act law in question refers to “national defense” information rather than “classified” information, suggesting that it may be irrelevant whether or not the records were declassified.

Corcoran did not return messages seeking comment Monday.

It’s possible to “imagine a bona fide mistake” or a president taking something sensitive inadvertently or because he needed it for a particular reason, said Chris Edelson, a scholar on presidential powers and a professor of government at American University.

But that argument could be complicated by the fact that Trump did not return the documents in their entirety sooner to the National Archives and Records Administration and that the FBI came to suspect, correctly, that there was still classified information on the property.

“I think if he had just returned the documents right away, he would be in a much stronger position legally,” Edelson said.

Ashley Deeks, a University of Virginia law professor and former National Security Council deputy legal counsel to President Joe Biden, said in an email that the Trump team’s claims in the letter “appear to be more of a political argument than an argument.” legal”.

He added: “The president’s defense team appears to be trying to signal the magnitude of proceeding with this case rather than articulating a clear legal defense.”

Associated Press writer Nomaan Merchant in Washington contributed to this report.


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