Trump claims to have declassified all Mar-a-Lago documents. Even if that’s true, it probably doesn’t matter.

Former President Donald J. Trump claimed Friday that before leaving office, he declassified all documents found by the FBI during this week’s search of his Florida residence that agents described as classified in a list of what they seized – including several caches apparently marked as “Top Secret.”

“Everything has been declassified,” Trump said in a statement.

The claim echoed a claim in May, after it emerged the National Archives had found documents marked as classified in boxes of documents they had removed from the club and Mar-a-Lago’s estate of Mr. Trump, by Kash Patel, a former official in the Trump administration and a big supporter of Mr. Trump. He claimed Mr. Trump deemed those records declassified shortly before he left office, but the markings were not removed from them.

Mr. Trump did not provide any details, but if he says he made a general oral invocation that all the files he brought to Mar-a-Lago were unclassified, without making a paper trail formal, it would be difficult to prove definitively. or refute. Even if there is no evidence that Mr. Trump followed normal procedures for declassifying certain types of information, his lawyers could argue that he was not constitutionally bound to obey such rules.

But in any case, such a claim would not settle the matter. On the one hand, two of the laws to which a search warrant executed at Mar-a-Lago this week referred – sections 1519 and 2071 of title 18 of the United States Code – make the taking or concealment of government documents a crime, whether or not they had nothing to do with national security.

On the other hand, laws against the taking or hoarding of material containing restricted national security information – which generally carries heavier penalties than the theft of ordinary documents – do not always correspond to the question of whether the files are technically classified.

Indeed, some criminal statutes enacted by Congress to protect certain national security information operate separately from the system of classifying executive records—created by presidents through executive orders—such as “confidential,” “ secret” or “top secret”.

In particular, a third law to which the warrant refers was Section 793, which provides for penalties of ten years in prison per violation. Better known as the Espionage Act, it was enacted by Congress during World War I, decades before President Harry S. Truman issued an executive order creating the modern executive branch classification system.

Accordingly, the Espionage Act makes no reference to whether a document has been deemed classified. Instead, it makes it a crime to retain, without authorization, documents related to national defense that could be used to harm the United States or aid a foreign adversary.

Prosecutors could argue that a document meets the standard of that law whether or not Mr. Trump declared it unclassified shortly before leaving office; similarly, defense attorneys could argue that it fails to meet that standard, regardless of how it was marked.

“Because the Espionage Act talks about national defense information, it leaves open the possibility that this information could be declassified as long as an agency still takes steps to protect it from disclosure,” Steven Aftergood said. , who leads the project on the government. Secret to the Federation of American Scientists in Washington.