Mar-a-Lago: Why an appeals court says Trump’s alleged declassification of documents is ‘red tape’


The 11th U.S. Circuit Court of Appeals — a unanimous opinion from an appeals panel of which Trump appointed two — said any uncertainty over whether the more than 100 documents were still classified was “red tape,” he acknowledged Wednesday. The Department of Justice to reopen a criminal investigation into them.

The split screen of the 11th Circuit ruling was an interview Trump gave to Fox News’ Sean Hannity in which he tripled that he had declassified the documents or that they could be declassified.

“If you’re the president of the United States you can declassify it by saying it’s declassified,” Trump said. “Even if it’s just a thought, since you’re sending it to Mar-a-Lago or wherever.”

Trump’s sweeping claims go beyond the murky manner in which his lawyers question whether the documents obtained in the search were still classified. In court, his team has narrowly avoided saying that Trump himself declassified the documents and resisted invitations to do so.

That dynamic was not lost on the 11th Circuit. The court pointed out that there is no evidence to show that the documents were being declassified, although the court determined whether the materials were declassified or not for the department’s bid to revive the investigation.

The key issue before the appeals court was whether the materials were Trump property that had personal significance that would justify keeping them out of the hands of the Justice Department.

Trump’s arguments about why those materials should be withheld from investigators were so far-fetched that few court observers were surprised that his claims made it to the appeals court.

The 11th Circuit “addressed the issue and the problem itself,” said Steve Vladeck, a CNN legal analyst and professor at the University of Texas School of Law. The court said, “That’s not the right way to think about it, but if it were, Trump would lose.”

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The appeals court, which was asked by the Justice Department to intervene, pointedly noted that Cannon had failed to explain why the documents in question would be material in which Trump would have a personal interest.

“For our part, we cannot discern why it would have an individual interest or need, out of a hundred documents with classification marks,” said the Court of Appeal.

The appeals court’s opinion included an explanation of what the classification markers represent, citing an executive order that states classified documents are “owned, produced, or … under the control of the United States Government.”

Declassifying those documents would not change the content or make it personal, the Court of Appeal said.

“Thus, even if we were to assume that plaintiff declassified some or all of the documents, that would not explain why he has a personal interest,” the 11th Circuit wrote.

“What they’re saying here is that Trump’s claim for the return of the documents depends on whether the documents are personal to him, such as his medical records, if they were seized, or perhaps the attorney client privilege.” Paul Rosenzweig, an expert on national security law, said Thursday on CNN’s “At This Hour with Kate Bouldan.”

“But classified information by its very nature — even if it’s declassified — is still government information and it’s not personal to the president of the United States. And he can’t make it, even in his mind, just by saying that,” said Rosenzweig, a former prosecutor. and also worked for the US Department of Homeland Security.

The 11th Circuit was able to act quickly to resolve the dispute because the Justice Department went to the appeals court with a very narrow and clear request, according to former Justice Department national security counsel Brandon Van Grack.

“The particular issue was if there was any reason why the DOJ could not have and use these documents marked as classified,” Van Grack said. “It was so clear by law that this restriction cannot and should not exist”

11th Circuit similarly dismisses declassification argument

While the appeals court said it didn’t matter whether the documents were declassified, the committee went to great lengths to remove the logic the Trump team had put forward to challenge the classified status of the documents.

Wednesday’s opinion Judge Raymond Dearie, the chief judge appointed as special master, expressed deep skepticism on Tuesday about how the Trump team was handling the declassification issue.

The court record “contains no evidence that any of these records were declassified,” the appeals court noted. The panel also noted how Trump’s lawyers apparently objected to Dearie’s request to disclose exactly what was declassified among the seized material.

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The 11th Circuit also detailed the set of facts that brought the case to the court of appeals. In that account, the panel highlighted facts that further undermined the idea that Trump may have declassified the documents.

In his opinion, he recounted the two previous portions of documents obtained from the Florida resort, including material with classified markings, as well as the Trump team’s failure to prevent the FBI from accessing the first portion, which the National Archives retrieved in January. Trump also waived the privilege when his representatives produced the documents in June, saying they were complying with a grand jury subpoena requesting classified documents.

That debate was “emblematic to the public of how sensitive the opinion is,” Vladeck said, noting that the Court of Appeals was strengthening the case for the possibility of an appeal to the US. Supreme Court

Along with these details about the documents, the 11th Circuit’s opinion placed significant weight on the FBI’s declaration in the case dealing with the national security risks posed by the suspension of the criminal investigation of the 100 documents.

“They spend a lot of time accepting descriptions of events that show broader concerns about the Justice Department’s framing of the case and the conduct of the case,” Van Grack said.