Did Trump declassify his Mar-a-Lago docs?

And does it matter?

Donald Trump's office is saying the documents marked “classified” that the FBI seized from Mar-a-Lago were declassified under a "standing order" he issued as president that allowed him to take sensitive materials to the White House residence at night so he could keep working.

Allahpundit at Hot Air asks a reasonable question: Where is the order? According to this account — sympathetic to Trump’s argument — the declassification is alleged to have “occurred in [Trump’s] mind.”

I understand that a president has broad power to declassify documents and that he need not follow the normal bureaucratic processes to use that power. It may very well be that Trump could have issued an order declassifying any and all documents he took to his White House residence for work purposes, and that once declassified, they remained so at Mar-a-Lago.

But there are security risks associated with removing classified documents to the White House residence and even more so to an outside residence like Mar-a-Lago. Might not more be required to declassify such documents than just the flashing of an idea in the president’s mind or — to state what I think we’re really talking about here — the mere act of the president treating them as if they were not classified? I bet Trump would be saying so if it were Joe Biden who had removed classified material.

(I should probably add that if, as has been reported, some of the documents in question related to nuclear weapons, it may be that the president can’t declassify them by simple fiat. This report suggests that some such documents are protected from disclosure by the Atomic Energy Act and can’t so easily be declassified by the president. I haven’t analyzed this question and take no position on it.)

But let’s assume there was a standing, valid order declassifying any and all documents Trump took to one of his residences in order to conduct the business of his office or, alternatively, that the idea of such an order in Trump’s mind is sufficient for declassification. Trump has been out of office for a year-and-a-half. He no longer needs the documents to conduct the nation’s business. Thus, the rationale for the “standing order” or “order in Trump’s mind” ceased to exist.

Team Trump might respond that because the documents had been declassified by Trump as president, they remained declassified after his term expired even if the reason for the declassification no longer applied. That’s true, I think, as a technical matter.

Unfortunately for Trump, there’s a strong argument that he wasn’t entitled to remove and retain sensitive national security-related documents once his term expired even if the documents weren’t classified. As Allahpundit points out, the Espionage Act speaks broadly of material “related to the national defense.” Such documents need not be classified for legal jeopardy to attach to those who remove them.

I made this point when Hillary Clinton was under investigation for removing documents. I also noted that documents originally deemed classified — as is the case with some of the ones Trump retained at Mar-a-Lago — might well be documents the disclosure of which “reasonably could be expected to cause damage to the national security.” Presumably, that was the reason for having classified them in the first place.

Similarly various federal document handling statutes such as the Presidential Records Act, which requires presidents to turn over certain documents when they office, are not limited to classified documents. To be clear, seeking penalties against a former president for retaining or mishandling ordinary presidential documents would be out-of-order, in my view. But if the documents in question are sufficiently related to our national security to have once been classified, seeking penalties wouldn’t be as offensive.

I’m not saying Trump should be prosecuted under any statute for having removed and retained documents that once were classified (and arguably remain so). First, we need to know more about the documents in question. Second, if the documents really do relate to national security in ways that raise genuine and significant concern about them being in Mar-a-Lago, we need to weigh the benefits of a prosecution against the harm to our system that will inevitably occur if an administration seeks criminal law sanctions against the head of the previous administration and the current de facto leader of the opposition party.

I will probably have something to say about this later on. All I’m saying in this post is that Trump’s claim that he declassified all of the documents he took to and retained in Florida does not look to me like an argument that, even if valid, gets him off the hook.