On Wednesday, the United States Court of Appeals for the Eleventh Circuit narrowed the order of U.S. District Judge Aileen M. Cannon by allowing the Justice Department to regain access to the roughly 100 classified documents seized among roughly 11,000 documents at Mar-a-Lago. It was not unexpected. As previously discussed, this was the “smart move” by the Justice Department to first seek access to this small group of documents with classified markings, the strongest of its arguments against the order. In the meantime, former President Donald Trump gave a full hour-long interview with Fox’s Sean Hannity, a risky decision in a case with potential criminal charges. In the interview, Trump suggested that he could declassify any or all documents “with a thought.” It is a position likely to further alienate both the Special Master and the appellate court, which have already expressed frustration with the lack of support offered for declassification claims.
Since the night of the Mar-a-Lago raid, many of us have asked for the evidence of such an order. While the government must show a knowing violation (as opposed to classified status), the Trump team has repeatedly declined to produce evidence of such a written or oral order, including any declaration from Trump or staff on such a decision.
The Hannity interview may explain why. In the interview, Trump did not claim any written order and brushed aside any need for any process or even expression of an intent to declassify:
Hannity: “A president has the power to declassify.”
Hannity: “You have said on Truth Social, a number of times, you did declassify.”
Trump: “I did declassify yes.”
Hannity: “What was your process to declassify?”
Trump: “There doesn’t have to be a process, as I understand it. You know, there’s different people say different things. As I understand, there doesn’t have to be. If you’re the president of the United States, you can declassify just by saying, ‘It’s declassified.’ Even by thinking about it. Because you are sending it to Mar-a-Lago or where ever you are sending it. There doesn’t have to be a process. There can be a process, but there doesn’t have to be. You’re the president. You make that decision. So when you send it, it is declassified. I declassified everything.”
If a president could declassify with a thought, he could literally declassify every document in the possession of the U.S. government with a constitutional Jedi-like power. No one would know that there was declassification other than the fact the he removed the documents or treated them as declassified.
Trump also appears to be relying on a legal advice defense (as he has with the challenge to the 2020 election and Jan. 6th questions). He makes direct reference to being given different accounts of the controlling law. There are some lawyers who believe that a president has immediate and unlimited authority over classified information. However, Trump is stating that he may not even have to utter a word of declassification to effectively negate the process of declassification as well as the status of documents.
That is clearly not going to go over well with the courts. Special Master Dearie has already lost patience with the Trump team in failing to support declassification claims and, correctly, said that he will proceed under the view that these documents remain classified in the absence of such proof.
At the same time, the 11th Circuit handed down its decision to curtail the earlier Special Master order to allow prosecutors to resume their review of documents marked classified.
Judge Cannon’s order on the classified documents was the most controversial element of her appointment. The former president’s failure to support his declassification claims only magnified the problem with that part of the order. However, the court also noted that “even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.”
The three-judge panel (which included two Trump appointees) granted the motion for a partial stay and noted that the Trump team offered no countervailing evidence “to undermine the United States’s representation—supported by sworn testimony—that findings from the criminal investigation may be critical to its national-security review.”
The panel stated that “for our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.”
The panel relied heavily on Department of the Navy v. Egan where the Supreme Court ruled in 1988 that “the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.”
The question now is whether the Justice Department will push forward to seek to challenge the rest of the order and the very basis for the appointment of the Special Master. There are roughly 11,000 documents and 1,800 other items being held from the search on Mar-a-Lago. As I wrote previously,
“The Eleventh Circuit could always go further on its own to strike down the order or indicate unease with the order as a whole but the Justice Department is only seeking a narrow remedy on the strongest claim dealing with classified documents. The decision on the motion pending appeal could give the DOJ an insight on whether the court is willing to go further on a more general rejection of the order.”
This was a very strong opinion, though the panel emphasized that “We stress the limited nature of our review: this matter comes to us on a motion for a partial stay pending appeal. We cannot (and do not) decide the merits of this case.” The Justice Department could elect to take the win and let Dearie proceed with his review (while litigating control or possession before the lower court). Conversely, it could take this strong language as an indication that the panel could be skeptical of the very appointment itself.
What is clear is that the investigation can now proceed with the full use of these classified documents to try to establish knowing violation by either Trump or his aides, including lawyers who certified or stated that there were no further classified documents at Mar-a-Lago.