Former President Donald Trump’s big mouth sets up a top-secret case against him

Former President Donald Trump’s long history of careless tweets may have set him back — stepping up every Justice Department case that the documents he improperly kept after leaving the White House were in fact still top secret.

“It’s poetic how much of this lawsuit – should he be indicted – will be governed by his own actions,” said Kel B. McClanahan, a national security attorney who teaches at George Washington University.

That’s because of the way Trump, as president, tweeted many promises to release documents, then backed down and used the Justice Department to vigorously defend the sanctity of the government’s way of classifying documents. He’s essentially caught himself as he now faces an FBI investigation into whether he compromised the safety of the American people by mishandling government secrets and possibly violating the Espionage Act.

Essentially, Trump’s outspoken style on Twitter forced the government to take a tougher stance on what it means to declassify a document — and forced the government to emphasize the strict, multi-step nature of the bureaucratic process. He can’t say now, all it takes is a hand movement.

Following the FBI’s raid in Mar-a-Lago last Monday, the former president and his allies have resorted to the defense that the documents are no longer truly sensitive.

On Friday, Trump took to his own social media network, Truth Social, to lay out his claim.

“Number one, it’s all been cleared,” he said. “Second, they didn’t have to ‘seize’ anything. They could have had it anytime without getting into 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 kept secure.”

His trusty bulldog, Kash Patel — the MAGA attorney Trump had stationed at the Department of Defense and who controversially sought to become a top CIA official — has reached out to conservative media to clarify the same claim.

During an interview with Fox News host Maria Bartiromo on Sunday, Patel said the president “can literally stand over a bunch of documents and say, ‘These are now declassified.'”

But Trump could run into some trouble, thanks to the legal precedent set by the many sudden crises he created himself during his tenure, routinely using hasty social media posts and press releases to target the CIA or the hit the FBI.

Whenever Trump publicly criticized a secret mission, journalists stood behind him and demanded access to government documents the president had just inadvertently released. When those requests for public records failed, news organizations were forced to sue government violations of the Freedom of Information Act. In each case, the DOJ struggled to find some justification for keeping this information secret.

“Trump was very good at doing really crazy things because he knew the Justice Department bureaucracy would defend him. He forced them to complain. He forced them to defend untenable things. And because they were the DOJ, they won,” McClanahan explained.

An example came in October 2020 when Trump tweeted that he “fully authorized the full declassification of all documents related to the greatest political CRIME in American history, the Russia Hoax. The same applies to the Hillary Clinton email scandal. No editors!”

The surprise announcement appeared to reinforce a long-running legal battle that investigative reporter Jason Leopold, then with BuzzFeeds News, had with the DOJ and the FBI to gain access to documents from the Trump-Russia investigation led by Special Counsel Robert Mueller .

But then Trump’s White House Chief of Staff Mark Meadows went into damage control mode and signed a court statement claiming that somehow the tweets didn’t mean what everyone thought.

“The court sided with the government and said, ‘We are not ordering disclosure. Official process was not followed,'” summarized Bradley P. Moss, a national security attorney who sometimes advises The Daily Beast on public record requests.

A second example came from the aftermath of a boldly worded statement in September 2018 by Sarah Huckabee Sanders, then White House press secretary. Trump was furious at the way his own federal agencies had investigated a campaign adviser, Carter Page, and he wanted to uncover every aspect of the operation.

In response, Sanders issued a press release alleging that Trump “directed the Office of the Director of National Intelligence and the Department of Justice (including the FBI) ​​to arrange for the immediate declassification of the following materials: (1) pages 10-12 and 17-34 of the June 2017 application in the FISA Court in the Carter W. Page matter.” The administration released 412 pages, but the information contained in 21 of those pages was hidden behind redactions.

At investigative reporter Brad Heath, then at United States today, searched these records with a FOIA request, he also hit a brick wall. The Trump administration refused to extradite her. Heath and the James Madison Project sued for access to the documents, and once again the matter fell to a technicality. US District Judge Amit P. Mehta ruled that despite the president’s power to limit public access to government secrets, mere statements from the White House are not enough to declassify something.

The judge referred to a signed court statement, this time by senior DOJ staff member G. Bradley Weinsheimer, in which he stated that “at no time has the DOJ received a declassification order with respect to the materials remaining in this case.”

But the crucial case came after Trump’s July 2017 tweet, in which he complained about how journalists reported on the CIA’s problems in arming and supporting pro-democracy rebels in Syria.

“The Amazon Washington Post fabricated the facts about my end of massive, dangerous and wasteful payments to Syrian rebels fighting Assad,” Trump tweeted at the time.

The New York Times used this tweet for FOIA records, claiming Trump effectively declassified information about the secret spy mission. When the DOJ countered that a mere tweet was not enough, the matter went before a federal judge and appellate panel.

“Declassification can only occur if certain officers follow certain procedures,” the Court of Appeals ruled in July 2020.

Moss said the deal was sealed.

“Even the President has to go through a formal declassification process. It doesn’t matter what he says unless there’s enforcement,” Moss told The Daily Beast. “Those are the only signposts we have. If Trump ultimately loses in a criminal case, it will be because of the precedent set in the FOIA cases brought up in his administration.”

Any potential federal prosecutor for the former president must investigate whether Trump actually obeyed an alleged document release order. National security advocates told The Daily Beast that any criminal case would depend on Trump proving his proxies got the order — but somehow didn’t carry it out.

Even Patel conceded that this is more complicated than waving a wand.

“We have to go through a rigorous process to procedurally do this,” he admitted to Fox News over the weekend. “But the President is and will remain [has] been the unilateral classification authority to classify and declassify. If he says something was released, that’s it. Then it’s released.”

However, because declassification is such a bureaucratic process, much evidence of what actually happened would already be available to the DOJ. Any document marked confidential can only be released after the relevant federal agency makes the change – and this may require a regulatory assessment of the potential harm that release of the information could cause. 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 nobody hears it, is it really declassified?” McClanahan asked.