Dissecting Trump’s defenses: Allies test out a variety in classified docs case

Former President Trump and his allies are testing out a slew of defenses against the Justice Department’s 37-count indictment as he prepares for his first court appearance Tuesday on allegations he mishandled classified documents after leaving the White House.

The defense being voiced by most Republicans, including Sen. Lindsey Graham (R-S.C.), is that the Justice Department (DOJ) is pursuing a politically motivated case.

Rep. Jim Jordan (R-Ohio), the powerful chairman of the House Judiciary Committee, argues Trump had wide discretion to declassify documents.

And conservative commentator Hugh Hewitt points out no documents were sold or given to third parties.

The litany of defenses reflects how much of the Republican apparatus still bends to Trump’s will, even in times of crisis.

But it also underscores the severity of the charges and how the former president and his team might have difficulty finding a clear defense in the face of what some Republicans acknowledge are serious charges.

Declassification powers

One of the defenses offered by Trump’s allies is similar to one put forward by Trump: His right to declassify documents was absolute.

Trump previously argued he had the right to declassify materials as president, even just by thinking about it, something experts dismissed as inaccurate.

The former president’s defenders argue his declassification powers meant it was a nonissue he possessed highly sensitive government materials after he left office. 

“He said he declassified this material. He can put it wherever he wants. He can handle it however he wants. That’s the law. That’s the standard,” Jordan said on CNN’s “State of the Union.”

Pressed by anchor Dana Bash on the details in the indictment, including a recorded conversation in which Trump tells a staffer without a security clearance he could no longer declassify a classified document he was discussing, Jordan dug in.

“Saying he could is not the same as saying he didn’t,” Jordan said.

Regardless of whether the information in Trump’s possession was classified isn’t a key point in the case, however, because proving a violation of the Espionage Act only takes showing someone improperly retained national defense information.

The indictment focuses on 31 highly sensitive documents, some of which contain information dealing with American military capabilities, including nuclear weapons, or foreign military plans.

The indictment also offers powerful evidence that contradicts Trump’s claims that the records were unclassified.

Prosecutors cite an instance in which Trump waved around a classified document while sitting for an interview with an author, noting he did not declassify it while president, adding, “Now I can’t, you know, but this is still a secret.”

Nothing given to third party

Some conservatives argue Trump’s actions are not serious enough to warrant prosecution.

“There’s no allegation that he sold it to a foreign power or that it was trafficked to somebody else or that anybody got access to it,” said Sen. Marco Rubio (Fla.), the top Republican on the Senate Intelligence Committee, Monday on CBS. “And you have to weigh the harm of that, or the lack thereof, on the harm that this indictment does to the country.”

Hewitt tweeted that his first reaction to the indictment was: “That’s it? The conspiracy is with the aide who moved the boxes? No documents were sold or given to third parties not in his close employ?”

Trump has been charged with illegal retention of records, meaning prosecutors did not charge him with the dissemination of the classified records.

Still, the indictment points to cases where Trump appeared to show the records to associates.

For example, Trump showed a classified map to an aide who works on his political action committee during a meeting in August or September at his Bedminster, N.J., club, the indictment alleges. Trump is said to have told the associate, who did not have a security clearance, he should not be showing it to the person and they should not get too close.

The indictment also lists the locations where classified records were found on Trump’s property, including a Mar-a-Lago bathroom — in sharp contrast to the secure facilities that are supposed to house such documents.

National security experts have warned Mar-a-Lago could be a target for foreign spies. Several foreign nationals have been arrested in connection with attempts to enter the property, though their motives were unclear. 

Double standard, political persecution

The most common response among Republicans defending Trump has been to argue the DOJ had been politicized or was enforcing a double standard.

Graham told ABC “This Week” host George Stephanopoulos multiple times Sunday he did not agree with Trump’s handling of classified materials. But he suggested Trump was being unfairly treated compared to former Secretary of State Hillary Clinton, President Biden or former President Clinton.

“I do believe, George, that most people on my side of the aisle believe when it comes to Donald Trump, there are no rules,” he said. “And you can do the exact same thing or something similar as a Democrat and nothing happens to you.”

Yet there are important distinctions between Trump’s case and the investigations into the handling of classified records by other political leaders.

Then-FBI Director James Comey accused Hillary Clinton of extreme carelessness for having a private email server at her home but added, “We did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.”

Former President Clinton kept tapes of his conversations with author and historian David Branch, reportedly storing them in a sock drawer. But the tapes were deemed personal records and did not contain classified records. 

In Biden’s case, aides notified the Justice Department upon discovering classified material from his time as vice president in an old Washington, D.C., office and at Biden’s Delaware home. And the president’s team has cooperated with the resulting DOJ probe of Biden’s handling of classified material, a stark contrast to Trump’s alleged obstruction.

Trump spent almost two years resisting the return of records and even encouraged his lawyers to lie to authorities or destroy documents after they were subpoenaed. 

Trump’s indictment takes into consideration his limited cooperation. Trump wasn’t charged for using any of the documents he returned to Archives, which itself came after a lengthy battle. The charges are based only on those collected following a subpoena and recovered during the search of his home.

Some Republicans also argue that even if Hillary Clinton or Joe Biden should be indicted, it is not an excuse for not indicting Trump.

“Assume for the sake of discussion that Hillary Clinton, Joe Biden, Hunter Biden, fill in the blank, should be indicted, should be prosecuted, and the failure to do so constitutes a double standard. Just assume that for purposes of discussion,” former Trump national security adviser John Bolton said Monday on CNN. “Now look at this indictment of Donald Trump. Do those people who make that complaint say therefore the answer is not to prosecute Donald Trump? That the response to a double standard is to move to no standard at all?”