Wielding the federal Freedom of Information Act, Coffee or Die Magazine has moved to force President Joe Biden’s administration to release the records that triggered the FBI’s Aug. 8 raid on former President Donald Trump’s Mar-a-Lago home.
Officials at both the Justice Department and National Archives haven’t ruled on the twin FOIA requests filed Monday, Aug. 29, by the news outlet, except to note they can take up to 20 days to decide whether to release the records the FBI insists are classified for national security purposes.
Trump argues that he declassified the documents as president before the General Services Administration shipped them to his Florida resort mansion. The former president’s legal team declined to comment when contacted by Coffee or Die in the wake of the FOIA filings but indicated support for the magazine’s effort to shine a public light on the seized records.
“At best, what we have here is a bureaucratic dispute over categorizing and labeling,” said Mike Davis, the former chief counsel for nominations to US Senate Judiciary Committee Chair Chuck Grassley and the conservative founder of the Article III Project. “The president has unfettered authority to declassify any document he wants to declassify.”
Coffee or Die’s push to review the Trump’s records stems from a search warrant obtained by the FBI to find similar documents inside the ex-president’s Palm Beach residence three weeks ago. Federal officials have yet to release a full inventory of what was taken.
According to a heavily redacted search warrant application released Friday, the FBI stormed Trump’s residence to retrieve the “physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation” of three federal laws.
The most important of those statutes is the Espionage Act, a 1917 law that attempts to prevent Americans from gathering, transmitting, or losing information vital to national security.
The FBI’s warrant rested on what Trump had already voluntarily returned to the National Archives. On Jan. 18, archivists received 15 boxes from the president, which they and federal agents claimed were stored in an “unauthorized location” at Mar-a-Lago, according to the FBI’s search-warrant request.
Those boxes allegedly contained records that were stamped as Sensitive Compartmented Information, HUMINT Control System, Foreign Intelligence Surveillance Act, Not Releasable to Foreign Nationals/Governments/US Citizens, or Originator Controlled/ORCON documents.
An FBI tally in May of the contents of the boxes at the National Archives revealed “67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET,” according to the search warrant.
Although leaks to news organizations suggested the Mar-a-Lago raid also sought to retrieve “Restricted Data,” highly classified records tied to US nuclear weapons and capabilities, there was no reference to fetching Q-clearance documents in any of the Justice Department’s legal filings.
While many experts believe the president is free to declassify any records protected by executive orders, others argue he can’t unilaterally uncloak and distribute Restricted Data documents because they’re controlled by statute.
Davis disagrees and predicts that, if prosecutors charge Trump with Espionage Act violations, the US Supreme Court will step in to stop them.
“Any statute that seeks to control the president’s ability to declassify any document is unconstitutional,” he said.
Questions about whether the president properly declassified any of the records in his possession popped up in the FBI’s search warrant application, too.
The FBI pointed to Kashyap “Kash” Patel, the former chief of staff to the acting secretary of defense at the tail end of Trump’s administration, who has stated publicly that the former president had declassified the retrieved Pentagon records. If the documents were declassified, then the president could bring copies of them to Florida, he reasoned.
And the president’s legal team backs up Patel.
Saying that he spoke directly for Trump, on May 25, Florida attorney M. Evan Corcoran wrote a letter to Jay I. Bratt, the chief of the Justice Department’s counterintelligence and export controls section, arguing that the US Constitution and the US Supreme Court gave the president “unfettered” power while in office to declassify the documents.
Once a document is declassified, it becomes available for public inspection and copying under FOIA, and that’s why Coffee or Die has moved to get the records.
“Look, a document is either classified, or it’s unclassified,” said Dan Grazier, a Marine Corps veteran who now serves as a senior defense policy fellow at the Project on Government Oversight, a nonpartisan and nonprofit watchdog organization that exposes waste, corruption, and abuse of government power. “I’m totally on board the classification of information that would give an advantage to our enemies, but a lot of times, classification is overused.”
A longtime barb in the Pentagon’s hide over the F-35 Lightning II stealth-fighter program, Grazier riffed on congressional testimony from Special Inspector General for Afghanistan Reconstruction John Sopko: “The government doesn’t classify good news.”
“A lot of times, something is classified to protect a program from embarrassment,” Grazier said. “That’s not the way the system is supposed to work.”
Regardless of the outcome of the Mar-a-Lago raid, Grazier warns of a wider and continuing slide into secrecy by the federal government.
He points to ongoing federal efforts to build on President Barack Obama’s Executive Order 13556 as a red flag for a less transparent and open government.
Obama’s order lumped together mounds of quasi-classified records under the “Controlled Unclassified Information.”
Critics like US Sen. Elizabeth Warren, a Massachusetts Democrat, worry that “CUI” is increasingly being used by agencies to cloak vast collections of mundane information from public scrutiny.
The conservative Davis takes concerns about government secrecy a step further and points to the potential politics driving the FBI’s Mar-a-Lago search.
“This was an unprecedented and unlawful raid, and you have to ask yourself why the Biden administration doesn’t want Trump to keep declassified documents. It goes back to the Russian collusion records, Crossfire Hurricane,” Davis said.
Crossfire Hurricane was the code name for the FBI’s counterintelligence probe between 2016 and 2017 into alleged ties between Trump and Russian officials and their associates worldwide, especially the potential collusion between the Republican’s presidential campaign and Kremlin efforts to destabilize the election.
There’s no specific reference to those records in the redacted court filings, however, and neither the Biden administration nor Trump has publicly pegged those records as the targets of the search warrant.
Coffee or Die also couldn’t confirm Davis’ allegation through either Trump’s attorneys or the federal agencies.
But that’s just one of the questions the magazine’s FOIA request might eventually answer, if the government hands the documents over.
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