What’s the crime in keeping classified documents? Trump — and the nation — may find out

“No person is above the law.” This is the common refrain we’ve heard from the Department of Justice (DOJ), Attorney General Merrick Garland and many analysts to justify the FBI search of Trump’s residence at Mar-a-Lago, reportedly to obtain classified documents that the former president allegedly kept.  

It is true that a U.S. president is not “above the law.” The problem with this scenario, however, is that, in general, the law that applies to a president — including a former president — for acts connected to their presidency is the Constitution.

As a country, we have always operated with a trust that our presidents will follow and uphold the duties they promised to carry out upon taking their oath of office. The remedy for violating a president’s oath — to include the commission of “high crimes and misdemeanors” — is also found in the Constitution: impeachment, not criminal prosecution.  

Garland and many Democrats, in their quest to hold Donald Trump accountable under federal statutes relating to record retention and classified information, are operating under the premise that Trump can be treated like any other government employee — someone who can be caught up in a legalistic debate about the possession of documents that are arguably classified, and their responsibilities associated with such.  

But that’s just not the case.

Even if Trump did have documents that were once classified containing information critical to the nation’s security, documents that he did not readily return to the National Archives or the DOJ, he may well have violated no criminal statute.

The president of the United States has unlimited access to all classified information. Any other government employee who accesses secret or top-secret information must possess the proper security clearance to do so, which typically entails their undergoing detailed background checks, polygraphs, and continuing responsibilities to report any information that could impact their trustworthiness such as arrests, foreign contacts, and the like.

But U.S. presidents do not possess any security clearance at all. To the contrary, the president is the classification authority, with the power to determine who can access classified information, who can be granted security clearances (or have theirs revoked), and even to determine what is considered classified in the first place. The president possesses this power because he is entrusted, among other things, with both the command of our military forces and the international relations that we have with other countries, functions that obviously require access to information of the highest sensitivity.

The president is inherently trusted to act in the best interests of the nation in determining when and under what circumstances to release information that ordinarily would be presumed to be classified at any level.

Trump’s foes can sound all the alarms they want, alleging that Trump had access to and retained important documents without authority, but their logic is shallow at best. While in office, Trump was given top secret briefings every day. As a former president, he knows many of the nation’s secrets, whether they’re on paper or in his memory. There are no constitutional requirements that, upon leaving office, a former president must forget all that he learned or shred all documents to which he had access. Basic notions of the separation of powers substantially limit the ability of Congress to micromanage the function of the presidency.

Now, there are some caveats to our opinion. First and foremost, a president is not protected by the powers of the presidency after the conclusion of his term of service. This means that any alleged violation of the criminal code that occurred on or after Jan. 20, 2021, would — and should — mean that Trump must be treated like any other U.S. citizen. Similarly, being a sitting or former president would not excuse jeopardizing the nation’s security by mishandling sensitive materials or risk allowing them to fall into the wrong hands, regardless of any legalities.

But the nature of the Justice Department’s investigation into Trump appears so far to concern primarily the documents and information that would have been squarely related to and generated from Trump’s time in office. For what it’s worth, criminal law typically resolves ambiguities in the law in favor of those accused.

In reality, Trump could have unclassified these documents at any time for any reason — although there is no clear indication that he did (and some experts insist a specific process must be followed to declassify) — so, to a degree, it defies logic that he now might be held criminally responsible for possessing the same information. (Remember, the Presidential Records Act has no criminal or administrative enforcement mechanism.) Even more than that, it makes no sense that someone could be convicted of a crime for acts that would have been made perfectly legal by the stroke of a pen by that same person. 

On the other hand, if Trump retained documents that he failed to declassify prior to the expiration of his time in office and which he insisted on holding in a manner that he knew to be unlawful, or if he otherwise knowingly misled investigators regarding the status of such, then he may, in fact, have some legal issues. The search warrant indicates that the case may be even more about the status of certain documents alleging obstruction of justice or even espionage.

Certainly, if Trump leaked information to foreign entities after his time in office with an intent to injure our nation, that would be a whole different ball game. But the totality of the information with which we’ve been presented thus far indicates that’s not where this case is headed. We are also unconvinced that the DOJ is hot on the trail of an obstruction of justice offense, a crime that involves intentionally misleading or frustrating a criminal investigation. It is not an obstruction to debate or legally challenge the demands of the National Archives, the DOJ, or the Democratic Party. And it is not obstruction for Trump to have declassified documents that those in power currently believe contain sensitive information, if he indeed did have those.

As we await more information about what occurred, the path to proving criminal conduct by Trump is for the DOJ to establish criminality — in whole — after he left office. We should not get caught up in a debate about whether Trump has proven these records to be declassified because, as soon as the DOJ turned this into a criminal matter, Trump’s constitutional right to a presumption of innocence took over. Where there is ambiguity about the nature of what is or is not classified, our Constitution demands that these questions be resolved in favor of the presumption of innocence.  

President Biden’s continued refusal to interject in this matter is somewhat unsettling. Yes, the DOJ should operate free of partisan influence — yet it is not ​Attorney General Garland who is ultimately in charge of the administration of justice in our nation; the attorney general serves at the president’s pleasure and his office carries out the duties and responsibilities of the president to enforce justice, a core function of the executive branch. It is the president who retains the power to supervise the functions of the DOJ, and to pardon individuals if the DOJ has gone too far.

The attorney general and others, including Biden, risk creating a constitutional crisis because their actions resulting in the FBI search at Trump’s residence to repossess “sensitive” or “classified” documents are an implicit attack on the autonomy of the executive branch during a predecessor’s term of office, with little or no sound legal basis — at least, based on what we now know — to successfully prosecute the former president. 

Katie Cherkasky (@CherkaskyKatie) and Andrew Cherkasky (@CherkaskyLaw) are both military veterans, former federal prosecutors and current criminal defense attorneys. As co-owners of the civil rights law firm, Golden Law Inc., they focus their legal practice on federal felony trial defense and appellate representation and other civil rights related issues.