As this article was going to press, ABC News published a report that weeks before the Mar-a-Lago search, former President Donald Trump’s associate Kash Patel “vowed to retrieve classified documents from the National Archives and publish them on his website.”
If that scheme involved Trump himself and the Mar-a-Lago documents, it could have significant legal implications for the Justice Department’s ongoing criminal investigation. Any plan to release the documents could potentially trigger specific elements of the Espionage Act and other criminal statutes designed with the core purpose of preventing unlawful dissemination of classified and other sensitive government documents. As I discuss below, credible evidence of such a plan also would likely factor into the Justice Department’s decision on whether to bring criminal charges.
The ABC News report is based on an interview Patel gave in June. However, Just Security has collected six other interviews and statements in which Patel discussed and elaborated on this plan. The excerpts of each of those are appended below.
The June interview may be among the most innocuous. It suggested Patel would go to the National Archives to obtain the documents. Likewise, in another interview on July 4, Patel suggested his plan was to pressure the Archives to release materials in their possession. Less innocuous and far more incriminating, however, are other interviews in which Patel more explicitly discussed an effort to release documents housed at Mar-a-Lago.
Patel is no ordinary aide to Trump. During the Trump administration, he served as Deputy Assistant to the President, a job he reportedly “landed after Fox News host Sean Hannity took him to meet Trump in the Oval.” After the November 2020 elections, Patel was dispatched to the Defense Department as chief of staff to the acting defense secretary where, among other activities, he reportedly pursued the idea that Italian military satellites had been used to turn votes to Joe Biden in the presidential election, according to Jonathan Karl’s book and the House Select Committee hearings. Since leaving office, Patel has joined the board of directors for the former president’s media company, Trump Media & Technology Group. On June 19, 2022, Trump sent a letter to the National Archives designating Patel as one of the former president’s “representatives for access to Presidential records of my administration.” Patel claims to have been in the room when then-President Trump verbally declassified documents. He has often made other statements in right-wing interviews that anticipate and put forward Trump’s specific claims of innocence about the Mar-a-Lago documents.
The Dissemination Plan
When news of the Mar-a-Lago documents began heating up in May 2022, Patel spoke with right-wing media outlets about Trump’s objectives in retaining these documents. He began laying out the defense that the documents had been “declassified,” and specifically identified Trump’s goal to release the information publicly. He described the content of the documents to include matters related to the FBI’s Russia investigation (Crossfire Hurricane), but also a much broader range of issues.
“It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more,” Patel told Breitbart on May 5. He also said, “Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves.”
That same day, Patel spoke with a right-wing video show and discussed Trump’s goal of “transparency” in releasing such information. He said:
“Part of that transparency comes in the form of, you know, providing the American public with information that should never have been classified or kept from them in the first place. And what he did was on his way out of the White House, he declassified — made available to every American citizen in the world — large volumes of information relating, not just to Russiagate, but to national security matters, to the Ukraine impeachment, to his impeachment one, impeachment two.”
All things that deep-staters, as you know, Buck, in government go in there and get their hands on and classify ’cause they don’t want the truth to get out ’cause it’s gonna make Trump look good ’cause he always supported the truth and the facts. And that’s what we have here is a whole slew of documents and information that President Trump wanted to put out.”
“We’re hoping to get this information out soon,” he added.
In the June 21, 2022 interview covered by ABC News, Patel spoke about using his official status as Trump’s representative to the National Archives to obtain and release the documents. He said, “Now that I am now officially a representative for Donald Trump at the National Archives, I’m going to march down there — I’ve never told anyone this, because it just happened, and I’m going to identify every single document that they blocked from being declassified at the National Archives and we are going to start putting that information out next week.” It is notable that Patel promised to start putting out the information, even though his interviews were replete with references to the National Archives opposing such a move.
In a July 4 interview for another far-right media show, Patel referred to pressing the National Archives for documents on the Russia investigation to “be released because they are already declassified.” Referring to the Russia investigation, he said “the American public has only seen sixty percent of what we’ve been able to see;” “Why won’t they release the other forty percent? … So I am going to continue that work at the National Archives, I apologize I can’t get it declassified overnight, but I’m on it.” At varying points in the interview, Patel appeared to maintain the line that the information was already declassified and at other times admit it was not.
In a summary of the Espionage Act published earlier this week, the New York Times wrote, “It is not clear why Mr. Trump had classified documents at Mar-a-Lago. There is no evidence yet that he was planning to release the material.” If there were such evidence, it could have significant legal consequences.
Several federal criminal statutes make it illegal to remove, retain, or exercise gross negligence in storing government documents. However, the more serious crimes include deliberately planning to transmit classified or other highly sensitive materials to the public. The Espionage Act, for example, makes it a crime for anyone who “attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted” closely held national defense information “to any person not entitled to receive it.” A prison sentence of up to 10 years can be imposed for violations of the statute.
Professor of law at the University of Michigan and former U.S. Attorney, Barbara McQuade, told Just Security, “Disclosing classified information is a crime for good reason. Classified information is defined as information, the disclosure of which will cause damage to the national security of the United States. Disclosing classified information to refute links to Russia puts Trump’s personal and political interests before our country.”
The Congressional Research Service has noted that “no individual has ever been acquitted based on a finding that the public interest in the released information was so great that it justified an otherwise unlawful disclosure.”
If evidence emerges of a plan to release the Mar-a-Lago materials, it could also shape the Justice Department’s decision on whether to bring charges.
“Factors that traditionally weigh in favor of the discretionary decision whether to bring a criminal charge would include the nature of the government information stolen — for instance, is it vital national security intelligence — and what the person intended to do with it. Although DOJ need not wait until such information is disseminated to a third party, if that was intended or in fact occurred that would weigh in favor of bringing a charge,” Andrew Weissmann, a professor at NYU School of Law and a former General Counsel of the FBI with experience working on these national security investigations, said in an email to Just Security.
Because some of Patel’s comments appear to involve simply pressuring the National Archive to release certain documents, presumably pursuant to proper procedures, it remains to be seen how the Justice Department will choose to handle the case.
Appendix: Kash Patel Statements
What follows are long excerpts of Patel’s statements. Just Security has collected the audio and video recordings.
1. May 5, 2022 – interview:
“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves. The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified. I was there with President Trump when he said ‘We are declassifying this information.’”
“The story says the National Archives found the documents had classification markings on them. That doesn’t mean that they were not declassified. All previously classified documents have classification markings on them, it shows they used to be classified. It’s petty bureaucracy at its finest, government simpletons not following a president’s orders to have them marked ‘declassified.’ The president has unilateral authority to declassify documents — anything in government. He exercised it here in full.”
“It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.”
2. May 5, 2022 – video podcast interview:
“As you know President Trump’s platform was transparency. And part of that transparency comes in the form of, you know, providing the American public with information that should never have been classified or kept from them in the first place. And what he did was on his way out of the White House, he declassified — made available to every American citizen in the world — large volumes of information relating, not just to Russiagate, but to national security matters, to the Ukraine impeachment, to his impeachment one, impeachment two.
All things that deep-staters, as you know, Buck, in government go in there and get their hands on and classify ’cause they don’t want the truth to get out ’cause it’s gonna make Trump look good ’cause he always supported the truth and the facts. And that’s what we have here is a whole slew of documents and information that President Trump wanted to put out, and the deep-staters came in and got their hands on it.”
“[W]hile President Trump was still president of the United States, he was going through reams of volumes of information with his team and said, ‘This is what the American people should see,’ and he literally said, ‘All of this is declassified.’ . . .They basically ran out the clock on him and submitted the record to the holding agency and they said, ‘Oh, these records still have classification markings on them.’ You and I, Buck, both know that’s meaningless if the commander-in-chief declassify[sic] them but the White House counsel’s office I believe is largely to blame here under President Trump, because they didn’t take the commander-in-chief’s guidance and orders on declassification.”
“[W]e gotta put the pressure on the government bureaucrats to release this information so the American public can read for themselves instead of having it said to them falsely and in piecemeal and leaked like we’re so used to whether it’s Russiagate or Ukrainegate or January 6th or what have you. And the American people have that right. We’re hoping to get this information out soon.”
“I can tell you now that I am now officially a representative for Donald Trump at the National Archives. And I’m going to march down there — I’ve never told anyone this, because it just happened, and I’m going to identify every single document that they blocked from being declassified at the National Archives and we are going to start putting that information out next week.”
“All this information that they want to, you know, they want to say–Russiagate is over, Donald Trump conspired. It’s not over yet, it hasn’t even begun. Because half this country still thinks, when they hear Russigate, they think oh that time because Adam Schiff told us Donald Trump colluded with Russia. That’s not what happened at all. And our children are learning the opposite of that as well because the mainstream media and Adam Schiff continue to lie….Every time a document is declassified, it’s going right up on DurhamWatch.com for free, and we are going to make a big announcement every time….I want to educate the American public on how deep the FBI lied [about Russigate] and their level of corruption went. It wasn’t accidental. It was orchestrated by James Comey and Andy McCabe and their underlings, and they’re still doing that illegal work….People are like, Russiagate is over. It ain’t over. We’re just starting.”
4. July 4, 2022 – video podcast interview:
“What had happened was President Trump substituted me in to be his representative at the National Archives because we did this big declass at the end of the Trump administration. And his cronies actually bureaucratically stopped the declassification process, if you believed it.
The Commander-in-Chief said ‘declassify’ to this mountain of documents, and he walked out and his cronies were like, “Well, we’re not going to exactly do that.” So now we’re in this fight and people think I can just walk down to the National Archives and, like, throw it in my, you know, my backpack and walk out. I’m working on it, and of course the bureaucracy is getting in the way but that’s not gonna stop us. I will be going to the National Archives in the coming weeks, I will be identifying those documents, and I will be demanding that they be released because they are already declassified. The reason they’re not released is because they show more corruption at the FBI and DOJ, just like we showed during our Russiagate investigation when Dev[in Nunes] and I led. What Dev[in Nunes] and I have always said, the American public has only seen sixty percent of what we’ve been able to see. So just imagine that. Sixty percent, and you have the biggest criminal scandal in US history. Why won’t they release the other forty percent? The same reason they didn’t want to release the first sixty percent. It shows corruption at the highest levels. It shows politicization. It shows political enemies using the intelligence system and law enforcement to prosecute a political vendetta, which should never be allowed. So I am going to continue that work at the National Archives, I apologize I can’t get it declassified overnight, but I’m on it.”
5. August 12 .2022 social media posting:
6. August 14, 2022 – Fox News interview:
Maria Bartiroma: Cash, you were working with the National Archives to get the proper documents out to the public about the Russia collusion lie. President Trump declassified batches of documents in October 2020 and then again in January 2021. How much of those documents were actually released to the public, and how much have we not seen and how damaging is what we haven’t seen? What can you tell us?
Kash Patel: Fantastic question, Maria. Yes, President Trump made me his representative to the National Archives months ago, and we’ve been in a bureaucratic battle. As Devin and I have always said to you, we found whole sets of documents we needed out to the American public from Russiagate. We got out about 60 percent. That’s why President Trump made it his mission to declassify and be transparent. In October of 2020, he issued a sweeping declassification order for every Russiagate document and every single Hillary Clinton document. Then on the way out of the White House, he issued further declassification orders declassifying whole sets of documents. And this is a key fact that most Americans are missing–President Trump, as a sitting president, is a unilateral authority for declassification. He can literally stand over a set of documents and say, “These are now declassified.” And that is done with definitive action immediately. The fact that the bureaucrats at NARA, who refer–remember, the National Archives are the ones that referred this to the Department of Justice, but they, the same principal, failed to refer Hillary Clinton to the Department of Justice when they got their hands on the classified emails from those servers.
Patel: He can literally stand over a set documents and say these are now declassified pic.twitter.com/uuqjvmX6xd
— Acyn (@Acyn) August 14, 2022
7. August 15, 2022 – video podcast interview:
“Now, in October of 2020, the president wrote a statement that’s now publicly available that said, I declassify every Russiagate document and every Hillary Clinton email investigation document. That’s it. That’s what it takes. And then out as he was leaving the presidency in December or January, he issued further sweeping declassification orders at the White House over whole sets of documents. So, those documents should have been immediately declassified. But what happened was they went to the politicians and now we know the National Archives representative has shown himself to be a political politician, said he referred the matter to the Department of Justice because he wanted Trump investigated because the GSA, not Trump, had mishandled the packaging of the documents.”
“And it’s been reported now recently that every president since Clinton and Bush has had standing orders that whenever documents leave the Oval Office and go to the residence at night ’cause he’s gotta go with work, they are automatically declassified.”
“Well, I’ve never seen them or handled [the documents at Mar-a-Lago] . . . I don’t know what was in them, but I can tell you what happened before which is what we talked about at the top of the show. And it’s key to note that the GSA, the Government Service Administration, they’re the ones that packed up and moved these documents. It’s not like President Trump put him in his briefcase and hopped aboard Air Force One on January 20th and said, ‘Okay. I’ll see you guys later,’ which is critical if you’re considering a case for improper use of classified information.”