Former President Donald Trump's claim that the documents seized by the FBI in a Mar-a-Lago raid were "all declassified" is not unprecedented, if he can prove it happened.
In the past, prosecutors have seen some leeway in exactly how a president may be able to declassify information without a clear paper trail, Politico noted.
Justice Department prosecutors had to consider whether Vice President Dick Cheney could unilaterally authorize his chief of staff, Scooter Libby, to leak to journalists the key findings of a then-highly classified intelligence report on Iraq's efforts to acquire weapons of mass destruction.
Libby's claim of the direct but unrecorded disclosure order from former President George H.W. Bush and Cheney may have contributed to a decision by Special Counsel Patrick Fitzgerald not to charge him with revealing classified information to reporters.
"The Libby case might have been the first time in memory that the question of unilateral presidential declassifications arose," said Steven Aftergood, an expert on classified information policy, to Politico. "It was giving one-time permission to a particular individual to disclose information to another particular individual … It highlights the fact that the president purports to, or does, stand outside of the classification system."
And, in 2014, former President Barack Obama appeared to acknowledge in a video chat the existence of a program of drone strikes in Pakistan that hadn't been explicitly acknowledged by intelligence or defense officials, Politico reported.
Criminal cases over breaches or leaks of national security information typically require the government to prove that the information was properly classified at the time or that it was "closely held" under some sort of regime for controlling disclosure.
Trump might be able to cite that information wasn't particularly "closely held" long before it ended up at Mar-a-Lago.
"The classification issue may not be where prosecutors are going," said Tom Blanton of the National Security Archive. "This may be more about taking and retaining — stealing government documents as opposed to mishandling classified info."
Among the seized files at Mar-a-Lago were documents connected to the FBI and DOJ's investigation of contacts between Russia and the 2016 Trump campaign. These documents were among those supposedly declassified by Trump in the closing days of his presidency. Many wound up in the custody of the Archives.
Trump maintains that he had power to declassify anything, and did so with verbal and written orders.
But if prosecutors decide not to charge Trump or anyone else with a classified-information crime, there is always the possibility of charges like unlawfully retaining ordinary government records, Politico noted.
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