Trump’s self-proclaimed ‘standing order’ remains a mystery as U.S. stays silent
March 16, 2023 Updated Thu., March 16, 2023 at 3 p.m.
Former president Donald Trump has defended his possession of dozens of classified documents at his Mar-a-Lago home by saying he had issued a “standing order” as president that records removed from the Oval Office meant they were instantly declassified.
The plausibility of such a standing order was dismissed as nonsensical by more than a dozen former White House officials. And now, the Justice Department and the Office of the Director of National Intelligence refuses to say in a court filing one way or another if that mysterious order exists.
Bloomberg News filed a Freedom of Information Act request for a copy of that standing order - if in fact Trump issued one - and later sued DOJ and ODNI to force its release. In documents filed Wednesday in response to that lawsuit, government attorneys say they can neither confirm nor deny whether Trump had a standing order, citing the ongoing criminal investigations against him.
“The existence or nonexistence of the alleged ‘Standing Order’ would bear on whether records with apparent classification markings were in fact classified - a key fact in the investigation,” wrote Joseph Bender, one of the FBI’s top FOIA officials, in a declaration submitted in U.S. District Court for the District of Columbia.
In FOIA circles, that response is known as a Glomar, named for a CIA ship designed to recover a sunken Soviet submarine, whose existence the CIA refused to confirm or deny in the 1970s.
On Aug. 12, a few days after the FBI’s Aug. 8 search, Trump posted on his social media platform Truth Social, that the records taken by the FBI were “all declassified.” The “standing order” defense was promoted that evening on Fox News by John Solomon, a journalist who Trump designated to speak for him on the case.
“As we can all relate to, everyone ends up having to bring home their work from time to time,” Solomon said, reading a statement on Sean Hannity’s talk show. “American presidents are no different. President Trump, in order to prepare the work for the next day, often took documents, including classified documents, to the residence. He had a standing order … that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.”
While U.S. presidents can declassify any document at will, former intelligence officials have said that such a “standing order” would have to be memorialized in writing and shared with the intelligence community as well as the agency that classified the document in the first place.
Bender said in the filing that if the FBI were to confirm or deny the existence of the standing order, then witnesses or other “persons of interest” could “alter their testimony; destroy, adulterate, or fabricate evidence; or refuse to cooperate with the government altogether.” Bender also said the bureau consulted with special counsel Jack Smith before it responded.
The FBI searched Trump’s residence at his Palm Beach, Florida, estate on Aug. 8, seizing 33 boxes of documents and ending a year-long fight between Trump and the US National Archives and Records Administration over his continued possession of classified documents from his presidency that he insisted he didn’t have or weren’t secret. Since then, classified documents have also been found in the homes and personal offices of President Joe Biden and former vice president Mike Pence, both of whom cooperated with authorities.
Attorney General Merrick Garland appointed in January a second special counsel, Robert Hur, to probe “the possible unauthorized removal and retention of classified documents or other records discovered” at Biden’s think tank in Washington and his home in Wilmington, Delaware.
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