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Citizen Trump may have broken a law that President Trump made a felony

The Washington Post logo The Washington Post 8/10/2022 Philip Bump
President Donald Trump, in the Oval Office on Jan. 23, 2018. © Jabin Botsford/The Washington Post President Donald Trump, in the Oval Office on Jan. 23, 2018.

There are not many people who know exactly why FBI agents searched Donald Trump’s Mar-a-Lago estate on Monday. The FBI knows, certainly, and the former president and his attorneys probably have a good sense as well, given that they saw the search warrant. Everyone else is operating on what’s been revealed by Trump’s team and public reporting: The FBI search was largely or entirely a function of the investigation into Trump’s retention of documents after leaving the White House.

We know that he did, by his own admission. This year, a number of boxes of material were turned over to the National Archives. Included in that material were some that were classified. On Monday, the FBI removed another dozen boxes, with speculation rampant that more of that material was similarly restricted.

If Trump is found to have violated federal law in removing and retaining classified documents without authorization, he could be convicted of a felony punishable by five years in prison. And that conviction would be a felony carrying that punishment because of a law signed by President Donald Trump.

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Trump’s 2016 campaign was intertwined with a similar question. His Democratic opponent, former secretary of state Hillary Clinton, had been found to have operated a private email server that she used for official business — including, the FBI determined, some that was classified. Trump and his allies pushed for Clinton to face criminal charges but in July 2016, FBI Director James B. Comey announced that the FBI wouldn’t seek an indictment. Trump was furious, but he won anyway.

During his first year in office, a central tool used for surveillance by the intelligence community — Section 702 of the FISA Amendments Act — was set to expire. Shortly before it did, Congress passed an extension of the authority for another five years.

But that didn’t come without turmoil. Trump came into office angry at the intelligence community for revealing to reporters that it believed Russia had interfered in the 2016 election. He excoriated intelligence agencies on Twitter — and continued to do so as the contours of the investigation into that interference became clear.

On the day that the House was set to vote on the reauthorization, Trump complained on Twitter:

“House votes on controversial FISA ACT today.” This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?

(That initial phrase is in quotes because Trump, characteristically, was responding to something he saw on Fox News.)

The tweet freaked out advocates of the extension. A few hours later, he tweeted his support and it passed. On Jan. 18, 2018, he signed it into law.

What became law was S. 139. It had been introduced by Sen. Orrin G. Hatch (R-Utah) as the Rapid DNA Act of 2017. But sometimes Congress hollows out existing legislation and replaces it entirely with other legislation to move the process forward more quickly. So S. 139 was replaced with H.R. 4478, which extended Section 702 for another five years.

It also had a stipulation editing 18 U.S. Code §1924. It originally read:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

With Trump’s signing S. 139 into law, that became: “ … shall be fined under this title or imprisoned for not more than five years, or both.” And with that, it became a felony.

You can see how Trump absconding with classified material to Mar-a-Lago would facially violate the law as articulated. So Trump’s allies have already been offering a rationalization: He had declassified everything he took to Mar-a-Lago.

In an interview on Fox News Tuesday night, former Trump administration official Kash Patel made this case.

“What I can tell you definitively is that President Trump was a transparency president,” Patel said when asked if there was any classified material at Trump’s Florida estate. “And time and time again … we tried to get all of it out. And President Trump, on multiple occasions at the White House, declassified whole sets of documents. Including — I remind you and your audience that around October of 2020, he issued a statement from the White House declassifying every document related to not just the Russiagate scandal, but also the Hillary Clinton email scandal.”

Trump did, in fact, order the wholesale declassification of a number of documents related to those investigations, including on the day before he left office. At that point, though, the order was to declassify documents that had been cleared by the FBI a few days prior.

In an interview with Breitbart in May (at the time reports about classified material at Mar-a-Lago first emerged), Patel made a slightly different argument.

“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” he said. “The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified.”

In other words, Trump declassified a bunch of stuff, even if there isn’t record of it. This obviously is very convenient — but also not completely ridiculous.

In 2017, on the day after he fired Comey, Trump welcomed senior Russian officials into the Oval Office for a meeting. During that discussion, he revealed to them classified information. That report spurred an unexpected defense as articulated by Sen. James E. Risch (R-Idaho) and others: The president has full authority to declassify things and can, in essence, do so on the fly. Fact-checkers considered this idea … and determined it to be largely accurate.

We’re trudging toward a very gray area here, clearly, but it is conceivable that Trump’s defense against his potential possession of classified material at Mar-a-Lago may be that he declassified it while still president, even if no formal record of the declassification was made. This introduces a slew of other questions, since that material would now presumably be publicly available in some form.

“The president has unilateral authority to declassify documents — anything in government,” Patel told Breitbart. “He exercised it here in full.”

Patel was one of the administration’s most loyal defenders during Trump’s presidency. As a staffer to Rep. Devin Nunes (R-Calif.), Patel was intimately involved in the congressman’s fervent effort to push back against the investigation into Russian interference. Nunes was also a critic of Clinton’s handling of her email server, suggesting at one point in 2016 that he hoped “the irresponsible handling of classified information documented by the FBI will be considered if any of these individuals currently possesses a security clearance or applies for one in the future.”

H.R. 4478, the legislation that became S. 139 and which escalated the punishment for the retention of classified material, was introduced in the House by Nunes.

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