Until Tuesday, Donald Trump had been making a lot of public claims about having declassified documents, but he had never made that claim in court. In fact, as recently as Monday evening, Trump’s attorney in the “special master” proceeding argued that this wasn’t something that needed to be discussed. That’s no longer true.
Because in a filing that arrived at the last possible moment on Tuesday, another Trump attorney responded to the 11th Circuit Court of Appeals with a series of extraordinary claims. First, there’s an insistence that, no matter what it may say on the cover sheet, these documents belong to Trump: “President Trump has a cognizable interest in his own Presidential records—irrespective of alleged classification markings.” The filing also claims that if Trump made notes on a classified document, those notes could “certainly contain privileged information” that privileges the entire document, which is a patently ridiculous idea for a number of reasons.
But the most amazing statement—and the one likely to be at the heart of every motion going forward—is this: “The government has not proven the documents are classified. The Government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable. However, the government has not yet proven this critical fact. The
President has broad authority governing classification of, and access to, classified documents.”
The first two claims made in this document—that Trump has an ownership interest in the documents, and that anything he touched may have gained some form of privilege—are exactly the issues dealt with by the Presidential Records Act. They’re why even non-classified documents related to Trump’s actions in office are subject to collection by the National Archives. What the attorney is hitting here is just the issue that Act addresses.
But those seem like footnotes (in fact, the privilege through scribbled notes claim is made in a footnote) to the big deal: Trump’s attorney is claiming that the documents—including highly compartmentalized information that threatens human intelligence sources—aren’t actually proven to be classified just because they are stamped as classified, attached to cover sheets identifying them as classified, and nested inside folders indicating that they are classified. However, he doesn’t seem to allege that someone forged all these components and slipped them into the boxes of documents Trump hauled away to Mar-a-Lago. Instead, he cites the president’s “broad authority governing classification of, and access to, classified documents” (and references, rather inexplicably, a case about whether or not the Merit Systems Protection Board is allowed to intervene when someone’s security clearance is pulled, which is several degrees removed from this situation).
It’s absolutely true that the president has broad discretion over who is allowed to access classified documents, but there are two big things wrong with that part of the argument. First, Trump is not the president. He holds no office, and has absolutely no say over who can or cannot view classified information. Second, this has nothing to do with the claim being made here, which is that the government hasn’t proven the documents are classified.
That argument is such a pathetic reach that it should be smacked down with a sledgehammer. What Trump’s attorney is trying to do here is argue that the Department of Justice has to prove that the documents are still classified, rather than Trump providing any evidence that they are not classified. He might as well have said the government has to prove the sky is blue. It’s that bad.
In the whole document, Trump’s attorney—Christopher Kise, in this case—is making the argument that Trump can argue classification against the executive branch. Which, unless Kise is prepared to go the next Q-step and simply claim Donald Trump has been Secret President all along, should be an absolute non-starter.
Just know that Trump is trying to have his cake (documents may not be classified) and eat it too (I never actually said I declassified them). There’s pounding the facts, pounding the law, and pounding the table. But this is just pounding sand. It’s a meaningless attempt to erect a roadblock that ought to be over in one second.
But then, over half the judges on the 11th Circuit were appointed by Trump. Maybe they’re inclined to hold Trump’s tiny hand and give him multiple tries, as Aileen Cannon did at the district level. Maybe they’ll make the DOJ explain the origins of the word “classified” and the origins of the Phoenician alphabet. It’s hard to know at this point.
Because this point is already ridiculous.
Good judges are more important now than ever. In some states, judges are on the ballot this November. Tune in to this week’s The Downballot to listen to Justice Richard Bernstein talk about what being on the Michigan Supreme Court has been like, and how his re-election campaign is shaping up.
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