Legal experts contend that whether former President Trump declassified the documents central to his federal indictment holds little significance. The Espionage Act criminalizes the improper retention or disclosure of sensitive defense information, not necessarily classified documents. Former Assistant U.S. Attorney Andy McCarthy emphasizes that the core issue is the "willful retention of national defense information," not its classification status. Even if Trump declassified the materials, they would still constitute national defense information and the grand jury subpoena demanded all documents with classification markings, regardless of declassification.
Trump's court appearance follows his indictment on 37 charges related to document retention, prompting calls for similar charges against President Biden by Special Counsel Robert Hur.
University of Minnesota law professor Richard Painter clarifies that while the president has declassification authority, even declassified national defense information falls under the Espionage Act's purview. He highlights the importance of scrutinizing document handling procedures, referencing the Biden documents discovered after his vice presidency. Painter stresses the need for rigorous checks both upon removal and arrival of such documents, regardless of classification, to comply with the Presidential Records Act and prevent unauthorized access.
Trump's indictment has refocused attention on Special Counsel Hur's investigation into Biden's handling of classified documents. The discovery of classified documents from Biden's time as a senator, found at various locations including the Penn Biden Center and his Delaware home, led to Hur's appointment. Jonathan Turley, a George Washington University law professor, questions Hur's approach, particularly regarding potential false statements by Biden and whether he has been interviewed. Turley finds Biden's explanation of the document handling questionable and suggests a deliberate process in their movement and division. He emphasizes the potential legal implications of lying to federal investigators and calls for Hur to exhibit the same rigor as Special Counsel Smith in the Trump investigation.
