Trump: I Declassified. DOJ: Whatever

The Justice Department is denying Trump the ability to use the defense that he did not know that his actions were wrong.

Reporters' scoops revealed the sensitive nature of the documents, and debates raged about the ex-president's authority to retain privileged information.

Trump repeatedly defended his actions by making legal dubious claims regarding a president's power to declassify materials. He insisted that he did so before leaving office and had, therefore, committed no wrongdoing. His surrogates then took to social media and friendly news outlets to amplify the story: the former president did nothing wrong as he exercised his authority within the scope of presidential powers to unclassify the documents in his possession.

When a federal grand juror handed down a 37-count criminal indictment against the former president, court documents revealed an interesting thing: the Justice Department had taken steps to sidestep the classification issue in several significant ways, eliminating one of Trump's most cherished defenses, and avoiding the risk of a long legal battle.

The former president was indicted on 31 counts for willful detention. This is a violation of the Espionage act - 18 U.S. Code SS 793, which makes it a criminal offense to possess or control 'information relating the national defence' without authorization. The statute makes it clear that information does not have to be classified in order to fall under 'information related to national defense'.

What's more important is not what the prosecutors chose to charge Trump with. That's a separate criminal statute relating to 'unauthorized removal or retention of classified material'.

The Justice Department charges Trump, not because all 31 documents in the indictment are classified, even though they were classified at the highest levels possible. Instead, the Justice Department accuses Trump of leaking information that could have been used to harm the nation's defense. The decision has essentially eliminated one of Trump World’s most effective tools for muddying up the debate.

In the indictment, there are references to classification marks when discussing other charges brought against Trump. These include things like conspiracy and withholding.

From a legal standpoint, classification is irrelevant. The question is: Does this matter to national defense? Barb McQuade is a former U.S. Attorney for the Eastern District of Michigan and a law professor at the University of Michigan Law School.

Trump has made the classification argument since the beginning of the investigation. He has leaned on his defense, in particular, as he attacked the Justice Department last August after the FBI conducted a search at his Mar-a-Lago club in Palm Beach in Florida. Investigators discovered over 100 documents marked classified.

You can declassify by simply saying that it is declassified or even just thinking about it. You're going to send it to Mar-a-Lago, or wherever you are sending it," Trump said last year in an interview on Fox News shortly after the search.

You are the president. This is your decision. When you send the document, it is declassified. He said, 'Because I declassified all of it.

Trump's argument was also prominent during the fight last year about the appointment of an outside reviewer, called a "special master", to examine the material collected at Mar-a-Lago in 2017.

Trump's attorneys never presented any evidence that Trump had moved to declassify documents. Experts also disputed Trump’s understanding of the declassification procedure - meaning this point could have headed to courts and appeals judge.

The Justice Department avoids a long and difficult classification battle by charging Trump with espionage under the Espionage Act. This act does not require that 'national defence information' be classified.

McQuade says that if it is classified information about national defense, which could be used against the United States to their detriment or in favor of another nation's benefit, it does not matter whether it's classified. "So, if the president declassifies something, it does not change its nature." They have therefore rendered this defense moot.

Experts say that, despite the fact that classified materials can be challenged, prosecutors would still have charged Trump under the Espionage Act, which is more comprehensive and efficient.

The search warrant was sought by prosecutors for Mar-a-Lago based on the same Espionage Act that they used to charge Trump, not criminal laws relating to classified material. McQuade believes that it is possible that prosecutors tried to avoid arguments over classification at the time.

Experts say that despite the charges brought against Trump, an indictment doesn't make the classification of the documents Trump held irrelevant.

The classification marks help to categorize the documents under 'national defence information'.

"Classification is relevant to the Espionage Act, because matters that are classed would fall under the differently described category called "national defense information," says Eugene Fidell. He's a visiting lecturer and expert in military laws at Yale Law School.

Even if all national defense information is not classified, it's highly unlikely. The classified documents that were cited in the criminal indictment may be the best evidence the Justice Department has.

Fidell: 'I'm sure that the Department of Justice focused on only the things that were not debatable when drafting the indictment.

The Presidential Records Act is relevant to the investigation and indictment that was unsealed earlier this month. This statute designates presidential documents as property of the U.S. Government. Only personal records like diaries that the president wants to keep and are not part of the official office will be exempted from this regulation.

Documents are classified according to their official status and personal nature.

A ruling in a legal dispute over the appointment last year of a special Master hinted at the distinction between official and personal documents.

A court of appeals that overturned the appointment a special master said that the classification was irrelevant to their specific legal battle, which hinged at the time on the separate question of whether the materials found in Mar-a-Lago were personal or official.

In any case, declassifying a document is not a valid argument, because it does not alter its content, nor would it make the document personal. Even if we assumed Plaintiff declassified some or all of these documents, this would not explain why he had a personal interest.

McQuade says that, beyond the legal implications of the document, the classification level of the document in the indictment shows how serious the allegations against the former President are, and how reckless he was.

McQuade: 'I believe part of it is to just put Trump, a jury, and the public on alert that these documents are serious, and what they pertain to, i.e. military capabilities, defence capability, weapons abilities'. This is very, very sensitive material.