(Bloomberg) -- Former President Donald Trump and his allies spent the week following the FBI search of his Mar-a-Lago home blasting out attacks on the investigation, deflecting blame, and floating baseless conspiracy theories.
Some of the assertions hint at possible legal defenses if Trump is charged, including that agents wrongfully seized privileged materials, that he declassified them, or that he’s not responsible for staff who packed the boxes at the White House. Others are unsubstantiated suggestions that the FBI planted evidence or that the search is part of a broader political plot.
Trump’s claims about the Aug. 8 search have given Republicans a fresh angle to rally support ahead of the US midterm elections in November, not to mention his possible entry into the 2024 presidential race. Lawmakers from both parties have demanded explanations from the Justice Department and asked for an intelligence damage assessment.
Trump says the documents are declassified
“Number one, it was all declassified.” -- Aug. 12 Trump post on Truth Social.
No one from Trump’s camp has shared anything in writing to back up this claim. A sitting president’s power to declassify is vast and the law is murky on how exactly they can exercise it. But there’s an expectation that it would be formally noted in writing, at a minimum to protect the government against efforts to pry loose information it wants to keep secret, said Steve Vladeck, a national security law expert at University of Texas School of Law.
While there is some uncertainty over exactly how a president could declassify information, Vladeck said “a world in which he can do it mentally is not a world in which the system makes any sense at all.”
Regardless, the federal criminal laws cited in the search warrant turn on whether government records were mishandled -- classified or not -- and whether there was an effort to obstruct an investigation.
Trump suggests the FBI planted evidence
“Everyone was asked to leave the premises, they wanted to be left alone, without any witnesses to see what they were doing, taking or, hopefully not, ‘planting.’” -- Aug. 10 Trump social media post.
Trump and lawyers Christina Bobb and Alina Habba also have suggested without evidence that FBI agents could have planted evidence during the search because his attorneys couldn’t observe. But Bobb and Eric Trump later said that his father and other family members had access to surveillance footage of the search after lawyers protested the FBI’s request to turn off security cameras.
It’s common for the FBI to clear areas to make sure agents are safe and there’s no interference, said Sarah Krissoff, a former federal prosecutor in New York now in private practice.
Trump says the search was for political, not legal reasons
“This Break In was a sneak attack on democracy (our Republic!), and was both unannounced and done at a time when the President was not even present. It was for political, not legal reasons.” -- Aug. 14 Trump social media post.
The search and seizure of documents from Trump’s Florida home was part of an investigation into whether he unlawfully held onto presidential records, including classified materials, after leaving office in January 2021, according to the search warrant approved by a judge and unsealed last week. Removing presidential records without authorization potentially violates a number of federal laws.
Trump says the boxes contained privileged information
“It has just been learned that the FBI, in its now famous raid of Mar-a-Lago, took boxes of privileged ‘attorney-client’ material, and also ‘executive’ privileged material, which they knowingly should not have taken.” -- Aug. 14 Trump social media post.
Trump and his supporters said some of the information seized was legally protected communications with an attorney and other materials were protected under privilege afforded to presidents to keep certain communications free from oversight by Congress and the courts.
Federal investigations can involve separate “filter” or “taint” teams to identify and return privileged information; exposing primary prosecutors or agents to this material could disqualify them or place a future prosecution in legal jeopardy. Prosecutors could ask a judge to use attorney-client communications if the privilege isn’t waived, but the bar is high. “It would have to show evidence of commission of a crime,” Krissoff said.
Trump spokesman Taylor Budowich did not respond to a request for comment about whether any other materials besides three passports had been returned. Representatives of the FBI and DOJ also did not return inquiries about whether other materials had been returned to Trump.
Trump says he was cooperating fully
“They could have had it anytime they wanted—and that includes LONG ago. ALL THEY HAD TO DO WAS ASK.” -- Aug. 12 Trump social media post.
The National Archives and Records Administration confirmed earlier this year that it had been working with Trump to reclaim records that he was supposed to turn over when he left office. The Justice Department got involved after Archives staff found documents with classified markings in 15 boxes of materials retrieved in January; federal investigators found more during a June visit, the New York Times reported.
A Trump lawyer signed a statement around that time that all classified material had been returned, according to the Times. But investigators had concerns about how documents were being handled in part based on subpoenaed surveillance footage from Mar-a-Lago and information from witnesses, the paper said. The FBI’s receipt from the search shows agents collected documents that were marked “classified TS/SCI,” which stands for top-secret and sensitive compartmented information.
Trump says Obama took documents that may have been classified
“What happened to the 30 million pages of documents taken from the White House to Chicago by Barack Hussein Obama?” Trump posted on Aug. 11.
Trump falsely suggested that former President Barack Obama took presidential records that could have included classified documents and faced no repercussions. The National Archives debunked Trump’s claim, saying Aug. 12 that it “assumed exclusive legal and physical custody” of Obama’s records when he left office and that Obama “has no control” over where and how they store the records.
Trump questions search of Melania’s closets
“Just learned that agents went through the First Lady’s closets and rummaged through her clothing and personal items. Surprisingly, left area in a relative mess. Wow!” -- Aug. 11 Trump social media post.
The warrant authorized agents to search the “45 Office” at Mar-a-Lago along with storage rooms or other areas where Trump or his staff could keep documents. Krissoff said that a closet is a natural place for the FBI to look, and that it was common for agents to leave a property in “disarray.”
“If you told me the place was pristine and everything was put back together, I would be concerned that they didn’t actually do the search as thoroughly as they should have,” she said.
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