Donald Trump and his allies are testing out a slew of defenses against the Justice Department’s 37-count indictment as the former president prepares for his first court appearance Tuesday on allegations he mishandled classified documents after leaving the White House.
The defense being voiced by the most Republicans, including Sen. Lindsey Graham (R-S.C.), is that the Justice Department is pursuing a politically-motivated case.
Rep. Jim Jordan (R-Ohio), the powerful chairman of the House Judiciary Committee, argues Trump had wide discretion to declassify documents.
And conservative commentator Hugh Hewitt points out that no documents were sold or given to third parties.
The litany of defenses reflect how much of the Republican apparatus still bends to Trump’s will even in times of crisis.
But it also underscores the severity of the charges and how the former president and his team might have difficulty finding a clear defense in the face of what even some Republicans acknowledge are serious charges.
Declassification powers
One of the defenses offered by Trump allies is similar to one put forward by Trump: That his right to declassify documents was absolute.
Trump had previously argued that he had the right to declassify materials as president, even just by thinking about it, something experts dismissed as inaccurate.
The former president’s defenders argue that his declassification powers meant it was a non-issue he was in possession of highly sensitive government materials after he left office.
“He said he declassified this material. He can put it wherever he wants. He can handle it however he wants. That’s the law. That’s the standard,” Jordan said on “State of the Union.”
Pressed by anchor Dana Bash on the details in the indictment, including a recorded conversation in which Trump tells a staffer without a security clearance that he could no longer declassify a classified document that he was discussing, Jordan dug in.
“Saying he could is not the same as saying he didn’t,” Jordan said.
Whether or not the information in Trump’s possession was classified isn’t a key point in the case, however, as proving a violation of the Espionage Act only takes showing someone improperly retained national defense information.
The indictment spells focuses on 31 highly sensitive documents, some of which contain information dealing with American military capabilities, including on nuclear weapons, or on foreign military plans.
The indictment also offers powerful evidence that contradicts Trump’s claims that the records were unclassified.
Prosecutors cite an instance in which Trump waved around a classified document while sitting for an interview with an author, noting that he did not declassify it while president, adding “Now I can’t, you know, but this is still a secret.”
Nothing given to third party
Some conservatives argue Trump’s actions are not serious enough to warrant prosecution.
“There’s no allegation that he sold it to a foreign power or that it was trafficked to somebody else or that anybody got access to it,” Sen. Marco Rubio (Fla.), the top Republican on the Senate Intelligence Committee, said on Monday. “And you have to weigh the harm of that, or the lack thereof, on the harm that this indictment does to the country.”
Hewitt tweeted that his first reaction to the indictment was: “That’s it? The conspiracy is with the aide who moved the boxes? No documents were sold or given to third parties not in his close employ?”
Trump has been charged with illegal retention of records, meaning prosecutors did not charge him with dissemination of the classified records.
Still, the indictment does point to cases where Trump appeared to show the records to associates.
For example, Trump showed a classified map to an aide who works on his political action committee during a meeting in August or September at his Bedminster, N.J., club, the indictment alleges. Trump is said to have told the associate, who did not have a security clearance, that he should not be showing it to the person and that they should not get too close.
The indictment also lists the locations where classified records were found on Trump’s property, including a Mar-a-Lago bathroom — in sharp contrast to the secure facilities that are supposed to house such documents.
National security experts have warned Mar-a-Lago could be a target for foreign spies. Several foreign nationals have been arrested in connection with attempts to enter the property though their motives were unclear.
Double standard, political persecution
The most common response among Republicans defending Trump has been to argue that the DOJ had been politicized or was enforcing a double standard.
Sen. Lindsey Graham (R-S.C.) told “This Week” host George Stephanopoulos multiple times Sunday that he did not agree with Trump’s handling of classified materials. But he suggested Trump was being unfairly treated compared to former Secretary of State Hillary Clinton, President Biden or former President Bill Clinton.
“I do believe, George, that most people on my side of the aisle believe when it comes to Donald Trump, there are no rules,” he said “And you can do the exact same thing or something similar as a Democrat and nothing happens to you.”
Yet there are important distinctions between Trump’s case and the investigations into the handling of classified records by other political leaders.
Then-FBI Director James Comey accused Hillary Clinton of extreme carelessness for having a private email server at her home, but added “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.”
Former President Clinton kept tapes of his conversations with author and historian David Branch, reportedly storing them in a sock drawer. But the tapes were deemed a personal record and did not contain classified records.
In Biden’s case, aides notified the Justice Department upon discovering classified material from his time as vice president in an old Washington, D.C., office and at Biden’s Delaware home. And the president’s team has cooperated with the resulting DOJ probe of Biden’s handling of classified material, a stark contrast to Trump’s alleged obstruction.
Trump spent almost two years resisting the return of records and even encouraged his lawyers to lie to authorities or destroy documents after they were subpoenaed.
Trump’s indictment does take into consideration his limited cooperation. Trump wasn’t charged using any of the documents he returned to Archives, which itself came after a lengthy battle. The charges are based only on those collected following a subpoena and recovered during the search of his home.
Some Republicans also argue that even if Hillary Clinton or Joe Biden should be indicted, it is not an excuse for not indicting Trump.
“Assume for the sake of discussion that Hillary Clinton, Joe Biden, Hunter Biden, fill-in the blank, should be indicted, should be prosecuted, and the failure to do so constitutes a double standard. Just assume that for purposes of discussion,” former Trump national security adviser John Bolton said Monday. “Now look at this indictment of Donald Trump. Do those people who make that complaint say therefore the answer is not to prosecute Donald Trump? That the response to a double standard is to move to no standard at all?”