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Trump’s Slippery, Shifting Self Defense in the Documents Case

There was a reasonable explanation as to why Donald Trump did not fully comply with a federal subpoena last year requiring the return of sensitive documents to the government, the former president told Fox News in an interview that aired last week: He had simply been too busy.

“Before I send boxes over, I have to take all of my things out. These boxes were interspersed with all sorts of things: golf shirts, clothing, pants, shoes. There were many things,” he told Fox News, referring to boxes he kept at his Mar-a-Lago residence in Palm Beach, Florida, and which were later found to contain classified materials.

“I was very busy, as you’ve sort of seen,” Trump explained.

Aside from acting as an admission that he had not, in fact, complied with the subpoena, the defense was a new one for the former president, adding to a list of explanations that Trump has trotted out since the Justice Department’s investigation into his mishandling of classified documents was make public – a list that has shifted and changed over time as the investigation has progressed.

None of Trump’s explanations appear to approach a solid legal argument, and he is scrambling to put a team of lawyers in place before a midsummer filing deadline in the criminal case against him. The Justice Department earlier this month charged Trump with 37 felony counts related to his retention of national defense information after leaving office, and his willful obstruction of justice – including his defiance of the subpoena last year.

In the early months of the investigation, as the probe appeared to center on classified materials Trump had improperly kept in his possession after he left office, Trump’s main defense centered on the issue of classification.

He and his allies argued that, as president, he had the power to declassify documents “instantly” and had, in fact, done so before leaving office – and, thus, had not improperly retained classified materials at all. Trump’s lawyers did not back up the legally dubious explanation with any evidence that Trump had actually moved to declassify the materials, but it remained one of Trump’s most robust defenses as the probe wound on.

But the former president has appeared to shift away from that defense recently as more information has been released about the subpoena issued last year – and particularly after the indictment of Trump was unsealed, revealing that prosecutors are charging Trump with the retention of national defense information, and not specifically classified materials – rendering classification moot as a legal matter, experts say.

The indictment against Trump also included a transcript of a recording of Trump speaking to an aide, a writer and a publisher at his club in Bedminster, New Jersey, where he appeared to show classified materials to people without clearance and acknowledged that they were classified.

“See, as president I could have declassified it,” Trump said, according to the indictment. “Now I can’t, you know, but this is still a secret.”

Trump also denied that he showed classified materials to others, telling Fox News that the documents he referenced were media clippings and other materials. But media outlets this week obtained some of the recording transcribed in the indictment that undercuts that defense.

“I have a big pile of papers. This thing just came up. Look, this was him,” Trump says on the recording, referring to Chairman of the Joint Chiefs Gen. Mark Milley. Sounds of paper shuffling can be heard on the clip, which was first obtained by CNN. “They presented me this – this is off the record but – they presented me this. This was him. This was the Defense Department and him.”

Trump has also honed in on the Presidential Records Act, a post-Nixon regulation that designates official presidential records as the property of the U.S., and requires their return to the government when a president leaves office.

The statute clearly distinguishes between official presidential records and personal records that do not need to be returned, defining personal records as “diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business.”

But Trump has repeatedly mischaracterized the act, arguing that he had the right to keep the classified documents and national defense information under the PRA. In a speech to supporters hours after he was arraigned on the charges earlier this month, Trump read snippets of the regulation and argued that he was entitled to have kept the documents he did.

He repeated the claims Saturday during an address at the Faith and Freedom Coalition annual meeting.

“Whatever documents a president decides to take with him, he has the absolute right to take them, he has the absolute right to keep them, or he can give them back to NARA if he wants, he talks to them like we were doing – and he can do that if he wants. That’s the law and it couldn’t be more clear,” Trump said in the speech, referring to the National Archives and Records Administration.

He has also in the past brought up a case concerning former President Bill Clinton – dubbed by those on the right as the “Clinton sock case” – in which recordings he had personally made were not returned to the government and were designated to be personal records.


Legal experts say, however, that Trump’s invocation of the PRA and Clinton’s case is misleading at best, serving only to muddy opinion and not function as a valid legal defense. The documents enumerated in the indictment against Trump were issued by government agencies, bore classification markings and concerned the national defense – and are notably not personal diary entries or records.

“It is completely invalid legally. I think the things he’s saying about the Presidential Records Act is just to toss out a talking point for the public. The whole, ‘What about Bill Clinton’s sock drawer?’ all sounds clever to the right wing ecosphere, but it’s just complete, legal nonsense,” says Barb McQuade, professor of practice at the University of Michigan Law School and the former U.S. Attorney for the Eastern District of Michigan.

Trump and his allies have also since the start of the Justice Department’s investigation cast the probe as a politically motivated effort meant to silence a key political foe of President Joe Biden.

“This is called election interference, and yet another attempt to rig and steal a presidential election. More importantly, it is a political persecution like something straight out in a fascist or communist nation,” Trump said earlier this month.

The former president seized on news early this year that Biden and former Vice President Mike Pence had also found classified materials in their personal possession. The Justice Department opened investigations into each case, recently closing the probe into Pence without charges while the investigation into Biden is ongoing.

Trump and his allies, including many Republicans on Capitol Hill, have pointed to the non-prosecution of Pence as evidence that Trump is being treated differently – ignoring crucial differences in the cases, such as the fact that both Pence and Biden voluntarily alerted and returned the documents to the government upon finding them.

Prosecutors are charging Trump only for national defense information he did not return after requests from the government and which he retained in violation of a subpoena – in other words, not for accidentally holding on to official documents after his term but for knowingly keeping them even when compelled clearly by law to return them.

Republicans’ arguments about a “two-tiered” justice system also got more difficult this week after Biden’s son, Hunter Biden, pleaded guilty to two tax-related charges and entered a diversion program over a gun charge in a deal struck with prosecutors. The charges came as part of a federal investigation begun under Trump and allowed to continue under Biden – evidence Democrats say proves the Justice Department’s commitment to impartiality.

Still, Republicans have cast Hunter Biden’s deal, which includes probation but no jail time, as a favorable slap on the wrist for the president’s son – despite evidence that well-known individuals’ fame often works against them in tax cases.

While Trump and his allies have continued to comment on the case in public, the former president is still trying to assemble a legal team to defend him in court.

The judge overseeing the case, Judge Aileen Cannon, this week set a trial date for mid-August. The date is almost certain not to hold. Smith himself filed a motion last week with the court asking for delay in the trial until Dec. 11. He said the case “is not so unusual or complex … and does not present novel questions of fact or law.” However, the case does involve secure information for which clearances will be required. Trump’s team is also expected to file a number of motions that would inevitably delay the start of a trial – something that might end up being his best defense.

If the trial is postponed and Trump prevails both in securing the GOP presidential nomination and then, eventually, the White House, he could install a friendly attorney general to dismiss the case – or simply pardon himself.