So it was also Solomon who on Friday night was briefed on the new reason why it was acceptable for Trump to keep a cache of documents near the pool at his resort. During an interview on Sean Hannity’s Fox News show, Solomon Lily a statement that Trump’s team had sent to him.
“As we can all understand, everyone ends up having to bring their work home from time to time,” Solomon read. “American presidents are no different. President Trump, in order to prepare for the next day’s work, often brought documents, including classified documents, to the residence. He had a standing order … that documents removed from the Oval Office and taken to Residence were deemed declassified the moment he removed them.
Solomon then wrote an article about this claim for his bespoke website. In this article – probably unintentionally – he revealed one of the two flaws of this argument: that there is no evidence that it is true. Sean Hannity, you might not be surprised to learn, hasn’t spent much time testing his on-air credibility; it seems unlikely that he will choose to clarify the reality on his Monday night show.
The other flaw, of course, is that this assertion about a standing order is largely irrelevant to the legal issue at hand.
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The question of the validity of the order is itself twofold: Box such an order exists, and did such an order exists?
The “may” question has been the subject of significant discussion since the FBI’s raid of Mar-a-Lago a week ago, a discussion that made clear how the rigors of the classification system – like so many other things in government – are based on standards of executive behavior that Trump has often ignored. A president has broad power to declassify, but Trump has regularly pushed the boundaries, such as when he mentioned classified information to Russian officials in May 2017.
There have also been times when Trump has publicly indicated that the material will be declassified…only for his attorneys and staff to back down on the claim. Journalist Jason Leopold Noted how White House Chief of Staff Mark Meadows responded in 2020 to a request for “declassified” material by Trump in a tweet: Trump didn’t really mean to downgrade everything.
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 against any request for declassification,” the lawyers wrote in a filing, the Times had to show “first, that President Trump’s statements are sufficiently accurate; and second, that such statements then triggered a real declassification. Otherwise, the documents have not been declassified. After all, they continued: “Declassification, even by the president, must follow established procedures.
What a blanket order “if I take this upstairs, it’s declassified” probably wouldn’t answer.
But, again, there is no evidence that such an order was in place. Solomon, apparently keen to bolster 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. either who disputes that,” was told of the alleged order. , to his apparent complete satisfaction.
Shortly after, someone challenged 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 took documents out of a safe space to the residence,” Bolton added, “it would have to be documented what they were – each document, so people would know what was declassified.” He was not aware of any such documentation, he said.
This is Schrödinger’s declassification. Everything is both classified and declassified until Trump is asked about it, at which point he settles into the position most useful to Trump. A government program he shouldn’t have talked about? Always ranked. A document lying around in a box at Mar-a-Lago? Downgraded. It’s government security through vibration.
But then we come to our second initial point: in broad terms, it doesn’t matter.
The Times’ Charlie Savage (who pointed to the Times lawsuit) made this point in a helpful article over the weekend. If you look at the three laws the Justice Department thinks Trump may have violated — 18 US Code Sections 793, 1519, and 2071 — you won’t see any mention that documents kept in potential violation of the law must have been classified documents.
Article 793 deals with “information concerning national defence” and gives an exhaustive list of qualified elements (information concerning “aircraft, defense works, shipyard, naval base, submarine base, supply, fort, battery, torpedo station, arsenal”, etc.), but it does not stipulate that the information must be secret. Section 2071 focuses on anyone “taking and carrying away any records, proceedings , map, book, paper, document, or anything else, filed or filed with any clerk or officer of any court in the United States, or in any public office.”
Where Trump’s argument could help his case is with Section 1519. It focuses on efforts to obstruct or obstruct investigations by falsifying records and could apply to Trump’s response to government efforts to recover documents. In June, a lawyer for Trump testified that Trump was no longer in possession of classified material. The FBI has removed classified material, according to the manifesto it provided to Trump’s team last week, potentially violating Section 1519 — unless that material was filed by Schrödinger in unclassified status.
Trump’s arguments are malleable and situational, which reinforces the fact that they are often insincere. Over the past seven days he has claimed both that the classified documents have been declassified and that perhaps the FBI will bring him evidence, contradictory claims that are just options in the buffet of raising doubt that Trump traditionally offers to his political clients.
Solomon and Hannity filled their plates and sat down to eat. Hundreds of thousands of people tuned into Fox News to watch.