Trump claims Truth Social post is official legal request for FBI to “return” seized Mar-a-Lago docs

Legal experts say Trump's new defense for hiding classified docs may be an admission of a crime

By Igor Derysh

Managing Editor

Published August 15, 2022 9:23AM (EDT)

Former President Donald Trump speaks to supporters at a rally on April 02, 2022 near Washington, Michigan.  (Scott Olson/Getty Images)
Former President Donald Trump speaks to supporters at a rally on April 02, 2022 near Washington, Michigan. (Scott Olson/Getty Images)

Former President Donald Trump on Sunday demanded the FBI return documents he claims are protected by attorney-client and executive privilege that were seized from his Mar-a-Lago residence.

The FBI last week seized 11 sets of classified documents, including some that were marked as "top secret," from Trump's home. Fox News reported on Saturday that the documents seized in the raid may have included "records covered by attorney-client privilege and potentially executive privilege." Trump seized on the report on his Twitter knockoff Truth Social, "respectfully" requesting the return of the documents and claiming that his post qualified as a formal legal request.

"Oh great! 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," Trump wrote. "By copy of this TRUTH, I respectfully request that these documents be immediately returned to the location from which they were taken."

The Justice Department does not just hand documents back. The DOJ has already set up a "filter team" to review the seized materials before they are viewed by investigators to determine whether any of them are protected by attorney-client privilege, according to the Wall Street Journal.

Trump's claim of executive privilege is far more legally dubious, legal experts said.

"Anything that falls under 'executive privilege' doesn't belong to him. It's still government property and belongs in the archives," tweeted Teri Kanefield, a former appellate defense attorney. "So he admits to being in possession of stolen material. Someone needs to tell him he has the right to remain silent."

Sarah Isgur, a former Trump DOJ spokesperson, said she could not think of an example where executive privilege would apply to a document that was not also covered under the Presidential Records Act, which requires all of Trump's records from the White House to be preserved.

"Which means all such documents belong to the National Archives… and can't legally be held by Trump" at Mar-a-Lago, she tweeted.

Trump and his defenders have trotted out a slew of shifting defense strategies since the raid. Trump has speculated that FBI agents may have "planted" something on him without any evidence, citing only the fact that his lawyer was prevented from observing the search even though he was able to view the "whole thing" through surveillance footage, according to his lawyer.

Some Trump defenders have also pushed a novel claim about Trump's declassification powers. Trump's office issued a statement over the weekend claiming that he had a standing order in the White House that "documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them."

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"As we can all relate to, everyone ends up having to bring home their work from time to time. American presidents are no different," the statement said, adding, "the power to classify and declassify documents rests solely with the president of the United States. The idea that some paper-pushing bureaucrat with classification authority delegated by the president needs to approve the declassification is absurd."

John Bolton, who served as Trump's national security adviser, said he was never informed of such a policy while working at the White House.

"I was never aware of anything even remotely approximating that policy," he told MSNBC.

"When somebody begins to concoct lies like this, it shows a real level of desperation," Bolton told The New York Times.

Other Trump defenders have gone even further, arguing that Trump could declassify documents with his mind.

"This is a key fact that most Americans are missing: President Trump, as the sitting president is the unilateral authority for declassification," Kash Patel, a former Trump administration official, told Fox Business on Sunday. "He can literally stand over to the documents and say these are now declassified and that is done with definitive action immediately."

House Intelligence Chairman Adam Schiff, D-Calif., told CBS News on Sunday that he not has evidence that the seized documents were declassified.

"A former president has no declassification authority," Schiff said. "The idea that 18 months after the fact Donald Trump could simply announce, 'Well, I'm retroactively declassifying' or 'Whatever I took home had the effect of declassifying them,' is absurd."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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