Why Trump’s Mar-a-Lago Document Dump May Be a Crime
8. Could Trump have declassified the removed documents?
Presidents do have ultimate decision-making power over the classification of documents, and Trump could theoretically have declassified any records he removed from the White House. Indeed, former Trump National Security Council member Kash Patel has claimed Trump did just that before leaving office. There is no set procedure for presidential declassification, meaning that could be the basis for a defense if a case proceeds against Trump.
But even if Trump was found to have declassified documents, he could still potentially be prosecuted for removing or destroying them. And Richard Painter, chief White House ethics lawyer under President George W. Bush, points out that declassification of documents for an improper purpose could be a crime in itself. “If he declassified documents in order to remove them and destroy them, he’s destroying evidence, and that’s obstruction of justice or obstruction of Congress,” Painter said.