- Trump has claimed he had declassified the official documents he took after leaving office.
- But in a court appearance on Thursday his lawyers did not make that argument.
Donald Trump and his lawyers have made a range of arguments to explain why the former president was keeping hundreds of classified documents at his Ma-a-Lago resort after leaving office.
But in recent days their explanations are diverging.
In an interview Thursday, Trump repeated an argument he has been making for weeks – insisting he had declassified the information before leaving office under his sweeping presidential powers to to lift classification of government information.
John Fredericks, a conservative radio host, asked Trump how the stashes of top secret documents had ended up at his Florida resort before being retrieved by the FBI in an August 8 search of his property.
Trump replied that one "accumulate[s] a lot of stuff" during a four-year term in the White House.
"There's nothing secret about it," he continued. "It didn't have to be anything secret, and it's all declassified".
Only weeks ago, his attorneys were pushing the same claim in media interviews.
But in a Palm Beach courthouse Thursday, his lawyers were making a different case in arguing for a third party to be appointed to inspect the documents retrieved in the search, and for them ultimately to be returned.
—Kyle Cheney (@kyledcheney) September 1, 2022
They focussed on arguments that Trump was entitled to keep the documents under executive privilege rules. This, they argued, allow presidents the right to designate as personal and hold back some government documents from the National Archives after leaving office, Politico reported.
Notably absent was any claim the records had been broadly declassified by Trump, which they also did not mention in a legal filing earlier in the week.
Bradley P. Moss, a national security attorney, told Insider that Trump's attorneys had likely decided not to dispute that classified markings existed on the documents because it wasn't necessary in their bid to secure a special master.
"It is more than likely that if there ultimately is an indictment the Trump team will make pre-trial arguments (and presumably produce some kind of evidence) that he had declassified these records," said Moss. "It is simply not necessary for them to do so at this stage and for this issue."
Experts have been critical of the defences mounted by Trump and his legal team so far.
No evidence has emerged to substantiate Trump's claims he declassified the records found at Mar-a-Lago, with "classified" marking clearly visible on folders of documents the FBI pictured in the raid and included in a legal filing this week. In any case, the statutes the DOJ believes Trump may have violated don't require the records to be classified.
Michael Stern, a former lead counsel for the US House of Representatives, told Insider this week that Trump's legal team was unlikely to be successful in arguing for the documents to be returned under privilege rules, as it would require a judge to rule that Trump has more right to the documents than the current administration, a claim for which there's no legal precedent.
Stern also argued that privilege rules only apply to communications between a president and their close advisors, not to intelligence or government documents more broadly.
Some of Trump's claims about the raid appear to be aimed at riling up his base.
The former president baselessly claimed that the FBI may have planted evidence during its search, echoing the convictions of his supporters that a "deep state" of hostile officials has long been plotting against him.
But they are claims notably not being repeated by his attorney in the courthouse.