Contrary to critics, my argument on presidential privilege is consistent -- for actual presidents

There is no doubt that, when he was president, Trump, like Obama in 2012, was “fully empowered to declassify whatever information he [chose] to declassify, no matter how sensitive, no matter how damaging its disclosure.” But all the credible evidence indicates that Trump did not declassify the Mar-a-Lago documents during his term. Had he done so, then he would have moved in court to quash the grand-jury subpoena he received in May 2022. Indeed, he would have filed a motion for the return of property right after the August 2022 Mar-a-Lago search, supported by a sworn affidavit in which he explained when and how he had declassified the documents (see Rule 41(g)). He didn’t do these things because he hadn’t declassified the documents and he knew classified agency intelligence reports were not even presidential records, much less his personal property (see here and here).

Because of that, Trump had his lawyers comply with the subpoena (or at least appear to comply; it is alleged that he misled them about the location and number of classified documents). Trump never claimed to the Justice Department, the FBI, or the National Archives and Records Administration that he had declassified any of the Mar-a-Lago documents; nor did he instruct his lawyers to posit such a claim. To the contrary, on June 3, 2022, his lawyers presented the FBI with a package of 38 documents carefully wrapped in a manner that conveyed their understanding that the documents were classified. In conjunction with the package, the lawyers provided a sworn statement for transmission to the grand jury, setting forth no declassification claim. There is, moreover, no written declassification order even though the Presidential Records Act, on which Trump now purports to rely, requires such an action to be documented (see Section 2203(a)). And Trump is recorded, after leaving office, acknowledging that he possessed “highly confidential, secret” information but was no longer empowered to declassify it – statements that would make no sense if he’d declassified the documents (regardless of whether the government has recovered the classified document to which he was referring in the recording).

[Be sure to read it all, but this is the heart of Andrew’s rebuttal to the claim that he’s changed his position on presidential declassification. It isn’t Andrew’s position that changed — it’s Trump’s position, from president to former president. And I suspect that Andrew — who voted for Trump twice — has a better grasp on these laws than his critics do. — Ed]