Perhaps no person in modern American political history has built a movement on bluster like Donald Trump has. He throws a bunch of stuff at the wall, and his supporters are invited to pick and choose what they want to latch on to.
The telling gap between what Trump says and what his lawyers argue
We saw yet another example late Tuesday, when the Justice Department filed a response to Trump’s lawsuit seeking a special master to review documents seized from Mar-a-Lago.
For weeks, Trump has been telling anyone who will listen that he declassified those documents, as if that absolves him of any wrongdoing.
The most important things to note about that claim are that: 1) There is still no actual evidence he did this, 2) the laws Trump is being investigated for potentially violating don’t require the documents be classified, and 3) we just found out the subpoena for the documents was for documents with “classification markings,” not necessarily documents that were actually classified. As a photo the government filed Tuesday shows, the documents seized apparently did have classification markings. So even if Trump can somehow plausibly argue that he declassified them, he’s hardly off scot-free.
But beyond that is something else in the government’s filing Tuesday. The government says that when Trump voluntarily turned over some but not all of the documents to the National Archives in January, neither Trump nor his legal team ever made such an argument.
“When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege,” the filing says.
Indeed, the government argues that the Trump legal team’s handling of what it turned over in June, in response to a subpoena, effectively conceded that documents were still classified: “The production included a single Redweld envelope, double-wrapped in tape, containing the documents.”
This is, of course, the government’s representation of how events unfolded.
But even in the lawsuit at issue here, the Trump team has for some reason made no mention of the idea that these documents had been declassified. In addition, the search warrant affidavit released last week featured a May letter from Trump lawyer Evan Corcoran that asserted that Trump had “absolute authority to declassify documents” as president, but never actually claimed Trump had done so.
This isn’t even the first time in this controversy that Trump’s public comments haven’t matched his legal team’s maneuverings. As we noted two weeks ago, while the former president joined his allies in publicly calling for the release of the full search warrant affidavit, his legal team never argued for that in court.
While it might not have ultimately mattered, doing so might seemingly have greased the skids a little, given one of the considerations in keeping such things sealed is that it could impugn the subject of the investigation. Fox News host Laura Ingraham appeared gobsmacked that the Trump legal team took a pass on intervening in the case. Yet despite his legal team standing aside, it hasn’t stopped Trump from complaining about the extensive redactions in the affidavit we got.
The other big example of this dates back to shortly after the 2020 election. Trump claimed all manner of things about the voter fraud he assured the public was rampant. But when his lawyers and their allies appeared in court, these ridiculous and debunked claims were often missing. They even backed away from the “fraud” and “stolen” talk, instead opting for watered-down arguments about how the election was administered incorrectly.
“This is not a fraud case,” Rudy Giuliani said in Pennsylvania.
“We are not alleging fraud in this lawsuit. … This is not about fraud,” another Trump lawyer said.
Trump’s legal team signed a petition acknowledging they had no evidence of dead people voting, even though he had made that claim outside of court, including in a news release. Added another Trump lawyer when asked whether she was claiming fraud or misconduct: “I am not proceeding on those allegations.”
Trump lawyer Sidney Powell was less shy about going whole-hog in court. But when she found herself in professional and financial jeopardy over her false claims, she backed off. She said in response to a defamation lawsuit against her that “reasonable people would not accept” her contentions as fact, even though she stated them as such. She later justified her advocacy by saying, “Millions of Americans believe the central contentions of the complaint to be true, and perhaps they are” — the implication being she was acknowledging that they might not be true.
Of course, they were by and large not true. But the legal reckoning Powell has faced is instructive. There’s a reason lawyers might be reluctant to argue Trump’s full claims in court, especially when they are based on nothing but Trump’s desire to rile up his supporters. Lawyers might not only fear the kind of sanction Powell has faced, but also that failing to substantiate their claims in court could ultimately undermine their legal case. They might not even know whether to believe their client.
The good news is we’ll probably find out rather soon whether Trump’s legal team thinks it can prop up his claim about declassification in court. (Some of them have already repeated it in TV interviews.) Its response to the Justice Department’s filing is due by Wednesday night. If it leaves the government’s claim unanswered, that’ll pretty much say it all. The judge could also press Trump’s lawyers on the claim, given that Trump raised it again Wednesday morning.
It doesn’t matter a whole lot when it comes to whether Trump obstructed justice, for reasons outlined above. But it’s always helpful to know when bluster is just that.