Does Classification Even Matter?
All that said, there is an even more fundamental reason why Trump’s claims of declassification are likely to fall short as a legal defense. While there are criminal statutes that hinge on classification, they aren’t among the criminal offenses that the FBI included on the search warrant. To the contrary, all three of the criminal provisions that the FBI did list can be—and two routinely are—applied to misconduct that has absolutely nothing to do with classified information, making it unclear whether Trump’s claims of declassification would make any difference even if true.
The first provision listed, 18 U.S.C. § 1519, is an obstruction of justice provision that makes it a crime to knowingly alter, conceal, destroy, or falsify “any record, document, or tangible object[,]” so long as it’s done with the intent to impede or influence a federal investigation or other process. It’s unclear whether the Justice Department included § 1519 on the search warrant because it believes records held at Mar-a-Lago have been concealed or manipulated in violation of § 1519, or because members of Trump’s team may have generated false records as part of the extended negotiations over the retrieval of those records (such as the inventory that one or more of Trump’s lawyers reportedly signed in June 2022 asserting, incorrectly, that all classified documents had been turned over). Either way, whether the records held at Mar-a-Lago are classified or not is irrelevant, as the Justice Department routinely brings successful § 1519 charges in relation to records that are entirely unclassified, such as police reports and records of maritime waste disposal.
The second provision, 18 U.S.C. § 2071, similarly applies to any effort to willfully and unlawfully conceal, mutilate, or destroy “any record, proceeding, map, book, paper, document, or other thing” that is “filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States[.]” This language has been understood to cover efforts to conceal or destroy just about any sort of public record for well over a century. Consistent with this view, the Justice Department has described § 2071 as “a broad prohibition” covering “acts [that] involve either misappropriation of or damage to public records” without regard to whether they are classified and has successfully brought charges in relation to unclassified records ranging from Selective Service records to military flight logs.
Only the third criminal provision identified in the warrant, 18 U.S.C. § 793, is frequently associated with classified information. Enacted as part of the controversial Espionage Act, § 793 consists of several subsections that might be relevant to the materials recovered from Mar-a-Lago. The two most likely candidates—subsections (d) and (e)—prohibit individuals from unlawfully retaining or providing third parties with “any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation[.]” This universe of protected information is commonly referred to as “national defense information.”
This definition omits any discussion of classified information in part because it predates the modern classification system by several decades. That said, the mainstream view (over some dissent) is that it effectively encompasses most if not all properly classified information, as classification similarly applies to foreign relations and national security-related information that “reasonably could be expected to cause serious damage to the national security” if disclosed. Yet national defense information can include unclassified information as well. The only requirement is that it relate to the “national defense,” which the Supreme Court has described as “a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.”
This does not, however, mean that classification is entirely irrelevant to § 793 prosecutions. To secure a conviction under § 793, a prosecutor must show that a defendant deliberately disclosed or retained information relating to the national defense that they had “reason to believe could be used to the injury of the United States or to the advantage of any foreign nation[.]” This is relatively easy when a defendant knowingly discloses or retains classified information, as the fact that the information is labeled as classified shows that the defendant knew that it relates to national security and that U.S. officials believe its disclosure could harm the United States. In other words, § 793 is easier to apply to the mishandling of classified as opposed to unclassified information because the fact that the mishandled information is classified makes it easier to show the defendant had the requisite knowledge and intent. No doubt this is why most recent prosecutions under § 793 have involved classified information, though some have included charges relating at least in part to nonpublic unclassified national defense information as well.
This context helps to put the limited utility of Trump’s declassification defense into clearer perspective. It can be inferred that whoever was aware of the documents held at Mar-a-Lago knew that they were in possession of documents containing sensitive national security information whose disclosure might injure the United States by virtue of the fact that the documents were still labeled as classified and the FBI had told them that the federal government still considered those labels to be warranted. The fact that Trump may have reached a contrary conclusion and declassified them at some earlier point while president doesn’t render this inference invalid, especially as his views were expressly contradicted by those of the incumbent Biden administration. Even Trump himself would have had “reason to believe” that the information contained in the records at Mar-a-Lago “could be used to the injury of the United States” by virtue of the Biden administration’s stated concerns.
This is especially true in light of what Trump’s own statement says about his purported declassification order. Classified information can generally be declassified either because it is no longer eligible for classification because its disclosure no longer threatens national security or because other public interests favoring disclosure outweigh the need for secrecy. Trump’s justification for declassification—that he wanted to be able to work on the documents containing classified information from home—has absolutely nothing to do with the substance of the information itself and thus can only be understood as a generous application of the public interest standard. Indeed, Trump does not even claim to have even done any sort of assessment of the information before bringing it home, as would be necessary to determine if it were no longer eligible for classification. No one aware of this process—including Trump himself—could reasonably conclude that his declassification had any bearing on the preexisting assessment that disclosure of the information could harm national security, which is what § 793 is ultimately concerned with.
None of this means a criminal case against Trump or his associates is likely to be open and shut. If the Justice Department ever brings charges, their success will hinge on an array of specific facts relating to the underlying documents and how they were handled that are not currently known to the public. But at least under the three provisions that the FBI currently considers to be relevant to the case, the question of whether Trump declassified the documents at issue doesn’t seriously enter into the equation.
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