Trump legal team advances broad view of presidential powers

WASHINGTON — A newly unsealed FBI document about the investigation at Mar-a-Lago not only offers new details about the probe but also reveals clues about the arguments former President Donald Trump’s legal team intends to make.

A May 25 letter from one of his lawyers, attached as an exhibit to the search affidavit, advances a broad view of presidential power, asserting that the commander-in-chief has absolute authority to declassify whatever he wants — and also that the “primary” law governing the handling of U.S. classified information simply doesn’t apply to the president himself.

The arguments weren’t persuasive enough to the Justice Department to prevent an FBI search of Trump’s Mar-a-Lago estate this month, and the affidavit in any event makes clear that investigators are focused on more recent activity — long after Trump left the White House and lost the legal authorities that came with it. Even so, the letter suggests that a defense strategy anchored around presidential powers, a strategy employed during special counsel Robert Mueller’s Russia investigation when Trump actually was president, may again be in play as the probe proceeds.

It’s perhaps not surprising that Trump’s legal team might look for ways to distinguish a former president from other citizens given the penalties imposed over the years for mishandling handling government secrets, including a nine-year prison sentence issued to a former National Security Agency contractor who stored two decades’ worth of classified documents at his Maryland home.

But many legal experts are dubious that claims of such presidential power will hold weight.

“When someone is no longer president, they’re no longer president. That’s the reality of the matter,” said Oona Hathaway, a Yale Law School professor and former lawyer in the Defense Department’s general counsel’s office. “When you’ve left office, you’ve left office. You can’t proclaim yourself to not be subject to the laws that apply to everyone else.”

It’s not clear from the affidavit whether Trump or anyone might face charges over the presence of classified records at Mar-a-Lago — 19 months after he became a private citizen — and FBI officials are investigating who removed the records from the White House to the Florida estate and who is responsible for retaining them in an unauthorized location.

The FBI recovered 11 sets of classified records during the Aug. 8 search, and the affidavit made public Friday said 184 documents with classified markings also were found in 15 boxes removed in January.