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The documents the FBI searched in Mar-a-Lago don't hinge on being classified

MARY LOUISE KELLY, HOST:

As former President Donald Trump's explanation continues to evolve for why he had classified documents at his Mar-a-Lago home coming up on a year and seven months after he left the White House, so too have the questions evolved about his handling of those documents. In recent days, Trump has argued that his lawyers were fully cooperating and turning over the material. Then he argued that FBI agents who searched his home must've planted stuff. Now his team claims that Trump had a standing order to declassify documents.

Well, here to help us fact-check that last claim is Glenn Gerstell. He was the top lawyer at the National Security Agency until he stepped down in 2020. Welcome.

GLENN GERSTELL: Thank you - delighted to be here.

KELLY: So we know a sitting president has the power to declassify documents. This latest explanation from Trump's team boils down, as far as I can tell, to that if he, as a sitting president, chose to remove papers from the Oval Office, chose to - I don't know - take them upstairs to his residence, that they were automatically declassified. Do you buy that?

GERSTELL: It's awfully hard to accept that for both legal reasons and, almost more importantly, practical reasons. We've had - ever since the United States introduced a very detailed system of classifying our nation's secrets going back to the time of President Truman right after World War II, we've had a very, very specific procedure for how we classify the nation's secrets and then also, very importantly, how we declassify them. And that process, which is written down in both statutes and executive orders of the presidents that are binding on both Republican and Democratic presidents, say that there has to be a process. Someone needs to make an affirmative decision as to what kind of damage would result to national security, if any, as a result of a declassification. The agency that's involved that created the information in the first place has to be consulted. They get to say, gee, this would be a problem for us, or, no, it wouldn't. And then it has to be memorialized and recorded and that information disseminated out to the rest of the government.

Why? Because if another agency the next morning got a request from the public or under a Freedom of Information Act to release the information, they would have to know what has been declassified. And if we have a situation in which someone - whether it's a Republican president or a Democratic president, doesn't make a difference - says that whenever I go somewhere or go upstairs or reach the third floor of the stairs, documents that happened to be in my hand are just declassified, and we don't know which ones they are; we can't figure out later on which ones they were - that obviously is not going to be a practical system for preserving the nation's secrets.

KELLY: This is the if a tree falls in the forest, does anyone hear it kind of argument we're heading for.

GERSTELL: Exactly.

KELLY: Let me invite you to take a step back with me and consider, legally, is it even relevant whether Trump declassified these papers or didn't? And I'm asking because the search warrant for Mar-a-Lago referenced three potential crimes that the FBI is investigating, three statutes, not one of which depends on whether these documents were classified. Does it matter?

GERSTELL: Actually, it doesn't. And I think what's listed in the search warrant is fascinating both for what it includes and what it doesn't include. What it doesn't include, interestingly - and the search warrant is limited to three specific statutes. And the one that it didn't cover is a statute that makes it a crime to knowingly remove or retain classified documents. That statute wasn't listed. Why? I suspect that's because the Department of Justice wanted to be on extremely solid ground when they undertook this search warrant. And, of course, they were also aware that maybe the president claimed he had declassified this stuff.

So they didn't list that section there because they wanted to list three other statutes that have nothing to do with whether a document is declassified. One is a provision of the Espionage Act that relates to the mishandling of something called national defense information; not quite the same as classified documents - similar. And the other two statutes relate generally to mishandling of official government documents, nothing to do with whether they've been declassified. They could be as declassified as possible, and you might still be guilty of a crime under these other two statutes which relate to just mishandling of government records and storing them improperly.

KELLY: So as someone who has handled a lot of classified documents, what question is foremost in your mind now? Where does this go?

GERSTELL: I think the key thing that we need to recognize is that we should try to step back and divorce this case from the politics and the emotion for a second and simply say that if the Department of Justice was faced with a situation in which someone - some former government employee, whether high-ranking or low-ranking - was known to be in possession of government documents, including ones that are apparently top secret, what would the government do? And in this case, the government would in every case say, let's try to get them back. We can't run the risk that they're in an insecure place, that perhaps Chinese spies or some other adversary would try to get them. And they would ask for them back. And the government has a strong reason to do so and a deep history of doing that almost without regard to who's involved.

And this effort - first, they asked for them back; then they issued a subpoena; and then finally they undertook a search to seize the documents - is exactly what I would expect the government to do. The question of whether there is a subsequent prosecution is a separate issue. And the Department of Justice will weigh all the facts and make a decision on that. But step one is getting documents back so that our national security is no longer at risk.

KELLY: Glenn Gerstell, thank you.

GERSTELL: Thank you.

KELLY: He was general counsel for the National Security Agency from 2015 until 2020. Transcript provided by NPR, Copyright NPR.

Mary Louise Kelly
Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.
Alejandra Marquez Janse
Sarah Handel