Any indictment of Trump will likely be delayed—if it even happens at all—but it remains a real prospect for the man leading the polls for the Republican Party’s 2024 presidential nomination.
However, in a recent show of support, one of his former advisors has come out to claim the documents at Mar-a-Lago were Trump’s to keep.
The Claim
In an episode of the America First podcast with Dr. Sebastian Gorka, the former Trump advisor said the ex-president still had the same security clearances as he did while still in office.
“I still have all the clearances I had in the White House, I have top secret SCI,” Gorka added.
“There’s a very special aspect to being a president. Not only do you have the top secret clearances—the highest level, including nuclear secret clearance when you are president—guess what? The American system allows you to keep all your clearances until you die.
“Jimmy Carter who’s still shuffling around at whatever it is, 95 years old; Bush Jr; Clinton; Obama—all have their clearances. And guess what? So does President Trump. So the idea that he’s reading stuff or keeping stuff he’s not allowed to is bollocks.”
The Facts
A lot of what Gorka says simply doesn’t stack up against the facts of the Mar-a-Lago raid so far.
To take it right back to August 8, 2022, (the day of the raid), FBI officers, instructed by the DOJ, entered Mar-a-Lago to remove a number of documents, some of which were later found to have been marked with top security classifications.
Even before the DOJ revealed any detailed information about the grounds for the search, it was clear that there were well-grounded suspicions that whatever documents were at Mar-a-Lago shouldn’t have been there.
Speaking to Newsweek at the time, former federal prosecutor Michael Stern, who worked at the Department of Justice for 25 years, said that for a search warrant to have been carried out “the judge must have determined that Trump’s house would more likely than not contain evidence of a crime.”
“If there was a new search warrant for documents it means that Trump’s cooperation was not being offered in good faith,” Stern continued.
“It means he still had documents that he refused to return despite knowing he was required to do so. A search warrant is the perfect tool to get the documents back under those circumstances.”
Federal law states that classified information of any designation may be shared only with those deemed to be eligible for access by the federal government on a “need to know” basis. Anyone granted that level of access must agree to properly protect that information.
This includes an agreement to not disclose its contents, unlawfully remove the classified information from federally authorized storage facilities, and not store classified information in unauthorized locations.
Looking back at the Mar-a-Lago raid, a photo of documents recovered during the August search appeared to have assigned markings that indicated the information within them could put human sources at risk if handled improperly, and/or contain information received through communication monitoring/spy satellites.
In addition, the National Archives confirmed in February that it had received “15 boxes that contained Presidential records” that were previously located at Mar-a-Lago.
An affidavit disclosed that when FBI agents reviewed the contents of those 15 boxes, it found 184 documents with classification markings, including 67 marked as confidential, 92 marked as secret and 25 marked as top secret.
Even if in some capacity Trump was permitted to view them (even outside of office), there was probable cause for the DOJ to seek seizure.
Furthermore, Trump would likely have known before the raid that DOJ had grounds to do so, given that he had handed over a number of boxes earlier in the year.
The search warrant for Mar-a-Lago was granted under potential violation of the Espionage Act, the same act which Edward Snowden and Julian Assange face charges under in the U.S.
The argument, therefore, that Gorka makes about security clearances is a red herring.
Whether or not Trump had White House security clearances or any other privileges (which is not supported by evidence available), the Department of Justice, acting with the approval of an independent judge, deemed that there was significant concern that documents at Mar-a-Lago shouldn’t be there.
The question of whether Trump had any right or not to see them is separate, though here to the evidence in his favor is also scarce.
It is a myth that former presidents retain security clearances by default, as legal experts have previously pointed out, in part arising from the fact that presidents are not “read in” and “read out,” as others who handle classified material are.
“A security clearance is not required for former presidents to see classified material after leaving office—as an aid in writing memoirs, for example, or as a perk granted by the current president (which Biden hasn’t done for Trump),” David Priess, former CIA officer, tweeted in August.
“But there is a process for the former—accessing documents that are held by the National Archives, not merely taken by a former president—and there is only custom and tradition, not law or regulation, behind the latter,” Priess explained.
Such access is therefore only granted at the discretion and explicit permission of a sitting president. Beyond that, as the Presidential Records Act states, “Presidential records automatically transfer into the legal custody of the Archivist as soon as the President leaves office.”
U.S. Code 2071 states anyone who “willfully and unlawfully conceals…. any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.”
All that being said, when Newsweek contacted national security experts, it was told that Trump did not have appropriate clearances anyway.
Among these experts was national security law researcher, Claire Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy at Penn Carey Law, University of Pennsylvania.
Finkelstein said that Gorka’s claim was “false” and that while presidents are traditionally permitted to keep security clearances as a courtesy, President Joe Biden declined to extend that courtesy to Trump “presumably because he was aware that doing so would pose a national security risk.”
Indeed, when Biden took office he said he would bar Trump from receiving intelligence briefings, saying he could not be trusted because of his “erratic behavior.”
“The question of the security clearance however does not settle the matter of where the documents may be stored one way or another, since they are not Trump’s documents to keep,” Finkelstein added.
“Any classified documents would be the property of the US government, and they belong in whatever department typically houses them or in the National Archives.
“Under the Presidential Records Act, Trump can only remove personal documents from the White House, and those would not include classified material.”
Put together, these facts appear to undermine Gorka’s claim that Trump had security clearance privileges to keep such documents.
Newsweek has contacted Sebastian Gorka and Donald Trump for comment.
The Ruling
False.
As is clear from the facts of the raid, the Presidential Records Act and the U.S. Code on concealment of documents, the DOJ and an independent judge both were concerned that Trump—security clearance or not—should not have had classified documents at his property.
Although the DOJ’s investigation is ongoing, security clearances Trump enjoyed while he was president would not by default extend beyond his time in office, and would not supersede the laws that possession of classified documents, which are property of the U.S. government, potentially violated.
Moreover, Biden explicitly declined to allow Trump to receive intelligence briefings since leaving the White House, as former presidents typically do.
FACT CHECK BY Newsweek’s Fact Check team
