Donald Trump legal team advances broad view of presidential powers

mar-a-lago trump ap
But many experts questions in any powers remain after a presidency ends.

newly unsealed FBI document about the investigation at Mar-a-Lago not only offers new details about the probe but also reveals clues about the arguments former President Donald Trump’s legal team intends to make.

A May 25 letter from one of his lawyers, attached as an exhibit to the search affidavit, advances a broad view of presidential power, asserting that the commander-in-chief has absolute authority to declassify whatever he wants — and also that the “primary” law governing the handling of U.S. classified information simply doesn’t apply to the president himself.

The arguments weren’t persuasive enough to the Justice Department to prevent an FBI search of Trump’s Mar-a-Lago estate this month, and the affidavit in any event makes clear that investigators are focused on more recent activity — long after Trump left the White House and lost the legal authorities that came with it. Even so, the letter suggests that a defense strategy anchored around presidential powers, a strategy employed during special counsel Robert Mueller’s Russia investigation when Trump actually was President, may again be in play as the probe proceeds.

It’s perhaps not surprising that Trump’s legal team might look for ways to distinguish a former President from other citizens given the penalties imposed over the years for mishandling handling government secrets, including a nine-year prison sentence issued to a former National Security Agency contractor who stored two decades’ worth of classified documents at his Maryland home.

But many legal experts are dubious that claims of such presidential power will hold weight.

“When someone is no longer President, they’re no longer President. That’s the reality of the matter,” said Oona Hathaway, a Yale Law School professor and former lawyer in the Defense Department’s general counsel’s office. “When you’ve left office, you’ve left office. You can’t proclaim yourself to not be subject to the laws that apply to everyone else.”

It’s not clear from the affidavit whether Trump or anyone might face charges over the presence of classified records at Mar-a-Lago — 19 months after he became a private citizen — and FBI officials are investigating who removed the records from the White House to the Florida estate and who is responsible for retaining them in an unauthorized location.

The FBI recovered 11 sets of classified records during the Aug. 8 search, and the affidavit made public Friday said 184 documents with classified markings also were found in 15 boxes removed in January. The Justice Department, responding to a Trump team request for a legal special master to sort through the materials, said Monday that officials had completed their own review of potentially privileged documents.

No matter the outcome of that latest issue, the affidavit makes clear that investigators are focused on potential violations of three felony statutes, including an Espionage Act provision that criminalizes the willful retention or transmission of national defense information.

Another law punishable by up to three years in prison makes it a crime to willfully remove, conceal or mutilate government records. And a third law, carrying up to 20 years imprisonment, covers the destruction, alteration or falsification of records in federal investigations.

The Espionage Act statute regarding retention of national defense information has figured in multiple prosecutions. Past investigations have produced disparate results that make it hard to forecast the outcome in the Trump probe. But there have been convictions.

Harold Martin, the ex-NSA contractor, pleaded guilty in 2019 to storing troves of classified information inside his home, car and storage shed, including handwritten notes describing the NSA’s classified computer infrastructure.

Which is why the Trump legal team may look to play up his status as a former President.

When it comes to handling government secrets, there are indeed some differences that could possibly be considered: Presidents, for instance, don’t have to pass background checks to obtain classified information, they’re not granted security clearances to access intelligence and they’re not formally “read out” on their responsibilities to safeguard secrets when they leave leave office.

“There’s no intelligence community directive that says how presidents should or shouldn’t be briefed on the materials,” said Larry Pfeiffer, a former CIA officer and senior director of the White House Situation Room. “We’ve never had to worry about it before.”

The May 25 letter from Trump attorney M. Evan Corcoran to Jay Bratt, the head of the Justice Department’s counterintelligence section, describes Trump as the leader of the Republican Party and makes multiple references to him as former president.

It notes that a President has the absolute authority to declassify documents, though it doesn’t actually say — as Trump has asserted — that he did so with the records seized from his home. It also says the “primary” law criminalizing the mishandling of classified information does not apply to the president and instead covers subordinate employees and officers.

The statute the letter cites, though, is not among the three that the search warrant lists as being part of the investigation. And the Espionage Act law at issue concerns “national defense” information rather than “classified,” suggesting it may be irrelevant whether the records were declassified or not.

Corcoran did not return messages seeking comment Monday.

It’s possible to “imagine a good faith mistake” or a President taking something sensitive without realizing it or because they needed it for a particular reason, said Chris Edelson, a presidential powers scholar and American University government professor.

But that argument could be complicated by the fact that the documents were not returned earlier in their entirety by Trump to the National Archives and Records Administration and that the FBI came to suspect — correctly — that there was still classified information at the property.

“I think if he had simply returned the documents right away, he’d be in a much stronger position legally,” Edelson said.

Ashley Deeks, a University of Virginia law professor and a former deputy legal adviser to President Joe Biden’s National Security Council, said in an email that the Trump team claims in the letter “seem to be more of a political argument than a legal argument.”

She added, “The president’s defense team seems to be trying to point out the magnitude of proceeding with this case rather than articulating a clear legal defense.”


Republished with permission of The Associated Press

Associated Press


  • Charlie Crist

    August 30, 2022 at 7:25 am

    Trump was a snake oil salesmen, crook, and silly bstard. All those who fell for the SOB and continue in their stupidity are gonna rot in the hottest part of hell.

    • tami

      August 31, 2022 at 9:40 am

      He told you he was a snake.

      I was thinking this morning how Biden should repeat that snake story and end it with, “He told you he was a snake.”

  • Hope

    August 30, 2022 at 8:56 am

    Charlie Crist,

    Thank you for your tilted nonsense that is incoherent and ridiculous. You lose all credibility and it doesn’t help those you will think you are helping.

    I hope your day is as pleasant as you are.

    • Charlie Crist

      August 30, 2022 at 9:03 am

      Oh it’s not rediculous. The SOB committed election crimes, espionage act related crimes, multiple impeachments, various frauds and thefts, sexual assaults, and 40,000 lies over four years culminating in an attack on the Capitol which would have never taken place if it weren’t for his joke of a presidency. You rodeo clowns should be shot..and that gd cartoon character Donald crook should be locked up NOW.

    • Ocean Joe

      August 30, 2022 at 9:34 am

      Sometimes outrage is called for. When a guy who knows damn well he lost an election, gins up a riot and people are killed as a result, for example.
      We all know that the former president will never spend a day in jail regardless of guilt because in America some people really are above the law, by reasons of birth, inherited or accumulated wealth, or connections.
      Now, having said that, please stand back and let the cheeseburgers do for America what the Democrats and Never Trumpers have been unable to accomplish.

    • tami

      August 31, 2022 at 9:51 am

      Hope is a TROLL. Don’t reply to anything they say. They are not reading and replying to your points. They are simply repeating ad hominem.
      Trust me, it will frustrate the bejesus out of Hope if you completely ignore them.

  • Charlie Crist

    August 30, 2022 at 9:04 am

    Oh it’s not rediculous. The SOB committed election crimes, espionage act related crimes, multiple impeachments, various frauds and thefts, sexual assaults, and 40,000 lies over four years culminating in an attack on the Capitol which would have never taken place if it weren’t for his joke of a presidency. You rodeo clowns should be shot..and that gd cartoon character Donald crook should be locked up NOW

  • Joe Corsen

    August 30, 2022 at 9:24 am

    Presidential powers my ass. The man should be shot dead.

  • Hope

    August 30, 2022 at 9:40 am

    Notice the partisan hatred being spoken and yet they cannot make one valid point intelligently. Only hate speech which one does when their candidate has no record of a accomplishments.

    Predictable, yet so tiresome it doesn’t even register and the downward spiral of their candidate continues.

    • Elliott O.

      August 30, 2022 at 10:09 am

      Um.. Trump’s accomplishments were crime related. Hello! Anyone home? What else did the man do besides sit on his balls and insult people for four years while the economy overheated?
      Also your comment about Biden having no accomplishments is nothing short of false information. The problem everyone has is that the Dems can’t clean up GOP messes fast enough every other 4 years or so. All you have to do is be able to recognize a pattern. If you are over 30 years old and you can’t recognize this pattern then you have intellectual disability or other detrimental psychological defense mechanisms.

  • Hope

    August 30, 2022 at 10:37 am


    Thank you for making my point.

    • Elliott O

      August 30, 2022 at 10:49 am

      What???? You’ve deflected from this article and Trump crime spree and the fact that the buffoon has brought the nation to a form of civil warfare for Christ sakes. Are you gonna be more specific anytime soon and tell us why you are pro crime, pro far right, pro destruction of civilized society???

  • Hope

    August 30, 2022 at 10:55 am

    You are making my point crystal clear. Amping up your ridiculous rhetoric is entertaining at the very least. Bless your heart!

    • Elliott O

      August 30, 2022 at 11:04 am

      Your point is that people should just accept false information, stupidity, and crime. Well done. Tis you who is rediculous for expecting validation of degenerate and harmful view points. Might I point out that stupidity in numbers doesn’t give the group legitimacy.

      • Hope

        August 30, 2022 at 11:36 am


        “…false information, stupidity, and crime.” You describe yourself perfectly!

        • Elliott

          August 30, 2022 at 12:12 pm

          Let me tell you something..Republicans don’t care about anyone on earth but rich Americans. Everyone else they want to rip off or kill including other Americans. The GOP has terrorized humanity for decades. The planet will only be safe and justice achieved when every single one of you apes and pigs are killed.

          • Hope

            August 30, 2022 at 12:21 pm


            One word: Psychopath!

            I see you’ve been pushed over the edge by truth, reality, and intelligence.

            The truth will drive you crazy and it wasn’t a long drive for you. Hope you can recover in the psycho ward along with your minions. Nurse Ratchet will be in soon …

          • Elliott O

            August 30, 2022 at 12:46 pm

            Trump is a delusional narcissistic psycho. Must be put down. If you people won’t renounce then you must also be put down. This is for the sake of humanity…

  • PeterH

    August 30, 2022 at 12:00 pm

    Justice arrives in many shapes and forms. 

    Consider this justice scenario for the Trump Crime Family: after committing extortion, blackmail, obstruction, witness tampering, sexual assault, insurrection and tax evasion; that Trump were to go to jail for not returning library materials on time.

  • tami

    August 31, 2022 at 9:49 am

    Hope is a TROLL. Don’t reply to anything they say. They are not reading and replying to your points. They are simply repeating ad hominem.

Comments are closed.


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