Trump’s status will shield him from some potential charges — but won’t completely protect him: legal analysis
Donald Trump's status as a former president could end up shielding him from some -- but not all -- potential charges for taking top-secret documents home from the White House.
Most federal workers who access secret information must "read in," a process that involves signing documents at the onset of their duties, and then "read out" with another signed statement acknowledging their legal responsibilities and asserting that they aren't possessing any classified materials -- but presidents do not, reported the Washington Post.
"Presidents are not formally read in," said David Priess, a former CIA officer who publishes the national security website Lawfare. “There’s a myth out there that presidents have a formal security clearance. They don’t.”
Presidents have the authority to classify and declassify documents, Priess said, and former president may receive limited access to those materials.
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“A former president might receive access to limited classified material after leaving office to assist with writing memoirs or at the discretion of the current president," Priess said, "but a formal security clearance isn’t involved.”
The former president's advisers returned 15 boxes of material, including more than 100 classified documents, to the National Archives in January, but his status as former president means federal prosecutors will likely end up focusing on what Trump did after May, after he received a grand jury subpoena for any remaining classified materials.
“It is yet another reason why criminally investigating and prosecuting a former president has complexities,” said Brandon Van Grack, a lawyer who previously worked classified mishandling cases as a federal prosecutor. “What it highlights is the criminal case is focused on what happened after May, not about what happened before then.”
John Kelly, a retired Marine Corps general who served as Trump's chief of staff, said he doesn't like classification rules and believes government officials should have given the former president a debriefing about classified materials and documents when he left the White House.
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“It would have been important to read him out because it would have been in some hopes that he would not violate all these rules on classified materials," Kelly said. "The important message would have been, ‘Once you’re not the president anymore, all the rules apply to you.'"
Trump's status may not protect him from two other potential charges on the search warrant, destruction of records and concealment or mutilation of government material.
“Because the president himself is the ultimate classifying authority, it makes sense that agencies do not formally read presidents in to classified programs,” said Ashley Deeks, a law professor at the University of Virginiad. “In terms of former presidents, Congress itself has recognized in statute that former presidents would still have access to at least some of their records, though Congress also has made clear that former presidents do not own those records personally.”
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